Docket:
T-1404-12
Citation: 2014 FC 231
Ottawa, Ontario, this 7th
day of March 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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KIDANE HAGOS and
SHAMAR MAINTENANCE INC.
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Applicants
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And
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Discrimination is a scourge in a society. Any
society. Its eradication is a just and noble cause and Canadian courts have
enforced the law with a good measure of robustness. However, a simple
allegation without more that someone has been discriminated against does not
suffice to establish discrimination. Indeed, under the Canadian Human Rights
Act, RSC 1985, c H-6 (the “Act”), a number of legal requirements must be
met before a complaint is proceeded with, including that a complaint is not
dealt with unless it constitutes a discriminatory practice according to
sections 5 to 14.1 of the Act.
[2]
In this case, the applicants allege
discrimination against them on the part of employees of the Department of
Public Works and Government Services Canada and they would want for the
Canadian Human Rights Commission (the “Commission”) to receive a complaint made
pursuant to section 40 of the Act. However, the Commission shall deal with a
complaint unless one of the paragraphs found at subsection 41(1) of the Act
applies. The subsection reads:
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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;
(b) the complaint is
one that could more appropriately be dealt with, initially or completely,
according to a procedure provided for under an Act of Parliament other than
this Act;
(c) the complaint is
beyond the jurisdiction of the Commission;
(d) the complaint is
trivial, frivolous, vexatious or made in bad faith; or
(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.
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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;
b) la plainte pourrait
avantageusement être instruite, dans un premier temps ou à toutes les étapes,
selon des procédures prévues par une autre loi fédérale;
c) la plainte n’est
pas de sa compétence;
d) la plainte est
frivole, vexatoire ou entachée de mauvaise foi;
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.
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[3]
This is an application for judicial review arising from a decision of
the Canadian Human Rights Commission, dated June 22, 2012, dismissing a
complaint against Public Works and Government Services Canada [PWGSC]. It is
brought under section 18.1 of the Federal Courts Act, RSC 1985, c F-7.
[4]
The Commission found that the corporate complainant, Shamar Maintenance
Inc., did not have standing. Furthermore, after initially requiring the
applicants to comment on the application of paragraph 41(1)(c) of the
Act, the Commission concluded that paragraph 41(1)(d) found application
and that it should not consider further the complaint made by the applicants.
[5]
The applicants take issue with the findings and seek judicial review of
that decision from this Court. They make two broad allegations. One is that
Commission’s staff was biased against the applicants in that the manner in
which they conducted themselves gave rise not only to a reasonable apprehension
of bias, but they actually were biased. Second, the applicants argue that the
decision to find their complaint frivolous is an obviously unreasonable exercise
of discretion which ought to be reversed by this Court. For the reasons that
follow, I have come to the conclusion that neither one of these grounds has
been established before this Court.
[6]
There was not, in my estimation, an iota of evidence that there was any
bias against the applicants nor, for that matter, an appearance of bias. The
difficulty encountered by the applicants was that their complaint did meet the
requirements of the Act. As for the reasonableness with respect to the decision
to apply paragraph 41(1)(d) of the Act, the complaint was seen as
frivolous in the sense that it was plain and obvious that the complaint did not
have a chance of success. However, and contrary to what the applicants seem to
believe, if it is plain and obvious that the complaint does not have a chance
of success, it is because the complaint does not disclose a matter that can be
dealt with under the Canadian Human Rights Act. The Commission did not
conclude, as it did not have to do, that the words complained of were not
spoken. It sufficed that the complaint did not meet some of the basic
requirements of the Canadian Human Rights Act.
The complaint
[7]
The source of the conflict between PWGSC and the applicants is a series
of contracts between Shamar Maintenance Inc. [Shamar] and PWGSC for the
maintenance of a number of buildings operated by the Government. The applicants,
including Mr. Kidane Hagos, allege discrimination and harassment because a
number of maintenance service contracts have either been allowed to expire
without being renewed or, in the case of one such contract, it has been
terminated.
[8]
It is not disputed that Mr. Hagos is the principal behind Shamar
Maintenance Inc.; it is not disputed either that the contract is between PWGSC
and the company.
[9]
Paragraph 3 of the complaint provides in my view an adequate summary of
what this complaint is all about. It reads:
[3] The
perpetrators have arbitrarily and systematically withdrawn maintenance service
contracts from Mr. Hagos because he dared complain to them of the discriminatory
treatment they are subjecting him to, and they even tell Mr. Hagos right in his
face behind closed doors that he cannot do anything about it!!! In fact, as
with all other arbitrarily and racially motivated terminated contracts, Ms.
Lynne Bergeron recently sent another notice by e-mail on September 20,
2011 informing Mr. Hagos that his maintenance contract EK219-093406/001/FK, at
the Health Protection Building (“HPB”), number 7, will not be renewed come
September 30, 2011.
[10]
The complaint goes on to allege that the dispute between the company and
the Government on the non-performance of the maintenance contracts was actually
motivated by racism towards Shamar and Mr. Hagos.
[11]
In order to support those allegations of racism, the complainants
referred in their complaint to utterances they claim were made over time by
PWGSC’s employees.
[12]
A careful and fair reading of the complaint can only leave the reader
with the conclusion that there was a commercial dispute between the company and
PWGSC resulting in seven maintenance contracts not being renewed or terminated.
The complainants want to give these non-renewals or terminations a racial
overtone.
The decision
[13]
The decision of the Commission in this matter was made on June 22, 2012.
The Commission is tasked by law with investigating a complaint and determining
whether there is a reasonable basis for it to proceed to the next stage. It
concluded that the matter was not to be pursued further. Thus, “the Commission
decided, pursuant to paragraph 41(1)(d) of the Canadian Human Rights
Act, not to deal with the complaint.” The record of decision states as the
reasons for decision:
Corporate entities do not have the
requisite standing to file a human rights complaint. While the complaint was
filed in the name of the CEO of the Shamar, the termination of the contract by
the respondent, regardless of any adverse impact it may have on the
complainants’ commercial endeavours, does not constitute an act of
discrimination has contemplated by the Act. As such, the matter is beyond the
jurisdiction of the Commission.
[14]
As instructed by the Supreme Court of Canada in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708, [Newfoundland and Labrador Nurses’ Union] the
adequacy of reasons is not anymore a stand-alone basis for quashing a decision
(at paragraph 14). The lack of adequate reasons does not give rise anymore to
successful procedural fairness arguments. Rather they have to be considered
with the record as a whole in order to decide if the decision is reasonable. In
the case at hand, the Court will also have to consider the report made by an
officer of the Commission which looked into the complaint made and provided a
recommendation which was followed. Indeed, the record of decision reflects verbatim
the conclusion reached by the officer with the exception that after the quoted
words from the reasons for decision, the report added: “Thus, the complaint is
frivolous.”
[15]
An examination of the report under section 41 of the Act shows clearly
that the two complainants were dealt with. Having concluded that the
corporation is not an individual who may be the victim of a discriminatory
practice, the report goes on to examine more carefully the situation of the
other complainant. The central issue of the complaint of Mr. Hagos is
considered to be “whether alleged treatment and termination of the contract
were due to the complainant’s race (Black), national or ethnic origin
(Eritrean), or colour (brown)?” The officer goes on to state that “[W]hile the
decisions of the respondent terminated one of its contracts with the
complainant, this was not appear [sic] to have been due to a ground of
discrimination listed in section 2 or 3 of the Act but rather as a result of
the business relationship with Shamar.”
[16]
Accordingly, the officer was of the view that the complaint is frivolous
as the notion is understood in our law. It was plain and obvious, in his view,
that the complaint could not be successful because it was about a commercial
dispute and the termination of the contracts was not due to a ground of
discrimination as they are listed in the Act.
Issues
[17]
As indicated before, the applicants contend that the Commission and its
officers were biased against them. They also contend that their ability to
respond to the examination conducted by the Commission under section 41 was
deficient, thus raising procedural fairness issues. Finally, their complaint
was not frivolous. I will examine these allegations in turn.
Standard of review
[18]
With respect to allegations of bias and lack of procedural fairness, the
standard of review is correctness and no deference is owed. The parties agree
(see generally Judicial Review of Administrative Action in Canada, by
Brown & Evans, Carswell, #7:1600 et al.).
[19]
As for the issue of whether or not the Commission ought to have declined
to pursue the matter further in application of paragraph 41(1)(d), the
decision in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]
as amplified in Information and Privacy Commissioner v Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654, leads inexorably to the conclusion
that a reasonableness standard applies:
[53] Where
the question is one of fact, discretion or policy, deference will usually apply
automatically (Mossop, at pp. 599-600; Dr. Q, at para. 29; Suresh,
at paras. 29-30). We believe that the same standard must apply to the review of
questions where the legal and factual issues are intertwined with and cannot be
readily separated.
Analysis
[20]
Three issues were raised. First, the Commission was biased against the
applicants. Second, procedural fairness was deficient in that, in the words of
counsel for the applicants, the Commission used a “shifting post strategy”. In
essence, the Commission is not allowed to consider paragraph 41(1)(d) if
it has already sought the parties’ position on paragraph 41(1)(c).
Actually the applicants also argue that the “shifting post strategy” was for
the purpose of finding a ground that would be “rather vague and arbitrary”
(paragraph 41(1)(d)) in order to decline to pursue the complaint.
Thirdly, the applicants argue that the Commission was mistaken to deny the
complaint on the basis of paragraph 41(1)(d).
1. Corporation
as victim of discriminatory practices
[21]
Before addressing the three issues, the Court should dispose of the
argument that the Commission was wrong to have concluded that a corporation
cannot be the victim of discriminatory practices under the Act.
[22]
The Commission relied on the decision of this Court in Attorney
General of Canada v Watkin, 2007 FC 745 [Watkin]. The case, which is
concerned with the Canadian Human Rights Commission and its application of
section 41 of the Act in the case of alleged discrimination of a government
department against a corporation, is on all fours. The Commission referred
specifically to Watkin in order to conclude that the complaint made by
Shamar cannot be proceeded with because, in the words of this Court in Watkin:
[28] . .
. The Commission did not have the jurisdiction to deal with a complaint
alleging discriminatory practices against a corporation such as Biomedica.
[23]
The case stands also for the proposition that the shareholder, as an
individual, cannot stand in the place of the corporation in order to fill the
gap if the discriminatory practice by the government institution is against the
corporation.
[24]
The applicants have argued that Watkin was reversed by the
Federal Court of Appeal at 2008 FCA 170. They cite one sentence of paragraph 3
of Watkin: “To the extent that the appellant is a victim of a
discriminatory practice, he has standing to bring the complaint forward and the
Commission has jurisdiction to dispose of it.” From that sentence, the
applicants argue that the Court of Appeal has decided that corporations have
standing.
[25]
Unfortunately for the applicants, the paragraph must be read in its
entirety and in context:
[3] The
appellant argues that given his close relationship to Biomedica, he suffered
financial loss as a result of Health Canada’s discriminatory practices and
therefore should qualify as a victim, with standing to bring the complaint, for
the purposes of the Act. To the extent that the appellant is a victim of a
discriminatory practice, he has standing to bring the complaint forward and the
Commission has jurisdiction to dispose of it.
As can be readily seen, the Court
is merely stating in the paragraph the position of the appellant,
Mr. Watkin.
[26]
The Federal Court of Appeal in Watkin chose to dispose of the
appeal on an alternate basis. It relied on its conclusion that the alleged
discriminatory practice under section 5 of the Act did not apply in the
circumstances. As is well known, it is not enough to allege one of the
prohibited grounds of discrimination of section 3 of the Act. It must be in
relation to one of the discriminatory practices defined at sections 5 to 14 of
the Act. If no discriminatory practice is established, there cannot be a valid
complaint. That is the conclusion reached by the Federal Court of Appeal.
[27]
There is in the decision no indication whatsoever that the Court of
Appeal disagreed with the first judge. In fairness, there is not either
anything to conclude that the Federal Court decision was endorsed on appeal.
The decision is left standing simply because the Court of Appeal chose another
route to dismiss the appeal.
[28]
I would respectfully decline to read in the silence of the Court of
Appeal anything. As with denied leave applications, they are not to be taken as
being an agreement or a disagreement with the judgment (Canadian Western
Bank v Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3 at paragraph 88; Telezone
Inc. v Canada (Attorney General) (2004), 69 OR (3d) 161 (ONCA)). As a
result, the Commission was not entitled to ignore Watkin.
[29]
This Court was not asked by the applicants to disagree with Watkin.
Had I been asked to do so, I doubt that I would have disagreed with the
persuasive reasons given by Justice Danièle Tremblay-Lamer to conclude that
corporations cannot complain under the Canadian Human Rights Act. It
does not have standing, as section 40 of the Act requires that a complaint be
made by “any individual or group of individuals”. I fail to see how any of the
grounds listed at section 3 can apply to a corporation. Furthermore, the
applicant did not raise, and I am not aware of, any case that would support
such a contention. Indeed, even the case-law under section 15 of the Canadian
Charter of Rights and Freedoms is unanimous that corporations do not
qualify for the protection afforded by section 15. The Commission did refuse to
pursue the matter of the complaint made by the corporation. In the circumstances,
the decision was also reasonable. Furthermore, as we shall see later, I am of
the view that none of the discriminatory practices required to ground
jurisdiction were present in this case.
2. Bias
[30]
The applicants make the very serious allegation that not only is the Court
faced with a perception of bias on the part of the Commission, but rather
actual bias took place in the treatment of the complaint made. If these
allegations were to be supported by some evidence, obviously the Court would
have to step in. However, I have come to the conclusion that these allegations
are baseless.
[31]
The applicants make allegations about three Commission’s officers. They
claim that the fact that the Commission examined the complaint on the basis of
paragraph 41(1)(c) initially, to then consider it on the basis of
paragraph 41(1)(d), was a tactical shift, the purpose of which was to
create a basis for declining to deal with their complaint. As paragraph 41(1)(c)
is said to be more intelligible, Commission’s officers “shifted gears to a rather
vague and arbitrary subsection 41(1)(d) of the Act” (application, page
5). They claim that these officers gave PWGSC preference and that they were
singled out for being late in producing submissions. They take issue with the
Commission enforcing its rules as to the number of pages that are allowed in
making submissions and complaints. They complain that two of the officers
refused to recuse themselves in spite of the numerous requests made by the
complainants through their counsel.
[32]
After a careful review of the allegations made by the applicants, I have
been unable to find any support for them.
[33]
Case in point, the application alleges that the Commission shared with
the respondent the complainants’ submissions with respect to the applicability
of paragraph 41(1)(d) of the Act, thus allowing the respondent to tailor
its submissions, the whole in breach of the “audi alteram partem
principle, to equally respond to the commentaries by the Respondent before it
is placed before the Commissioners?” (at page 8 of the application). For some
reason, the complainants believed that the respondent made its submissions
after those made by the complainants and that it had had access to those
submissions through Commission’s personnel. However, the record before the Court,
which was available to the applicants, shows that the respondent’s submissions
on the applicability of paragraph 41(1)(d) of the Act were faxed to the
Commission on April 4, 2012, at 10:27 a.m. A copy of that letter of April 4 was
transmitted to the applicants on April 12, 2012. As for the complainants, their
submissions were made on April 7, 2012, after the respondent. Other than
agreeing with the report, the respondent had no comment to make. Not only is
the record clear that the letter was sent on April 4, 2012, but the Memorandum
of Fact and Law of the respondent makes the point vividly.
[34]
Another allegation strongly presented as evidence of bias was that the
complainants had been singled out, with some animus towards them, where, in a
letter sent by a Commission officer on March 13, 2012, it is specifically referred
to the delay for providing submissions on the applicability of paragraph 41(1)(d).
Lo and behold, the record contains the very same letter, with the same warning
about deadlines, that had been sent the same day to PWGSC.
[35]
Finally, the applicants made an assortment of allegations that would
suggest, they claim, animus towards them, from the letter of March 13, 2012
asking for comments on the Commission’s officer’s draft report which refers to
paragraph 41(1)(d) to letters from Commission’s officers that speak in
terms of “complainant” instead of “complainants”. These allegations are
groundless. The use of the singular merely reflects the officers’ view that the
corporation cannot be a complainant, which explains their focus on
Mr. Hagos. As for the March 13 letter, it is true that its author refers
to a previous letter which would have indicated that the focus would be on
paragraph 41(1)(d); the complainants are right that there was not such
previous letter. However, the purpose of the March 13 letter was to bring
to the attention of the parties the draft report and to seek comments on the
use of paragraph 41(1)(d). I am hard pressed to understand the
importance of a reference to a previous letter. Both parties received the same
letter, containing the same minor mistake, and both parties were invited to
comment.
[36]
The applicants took issue with the Commission’s decision to consider
their complaint through the prism of paragraphs 41(1)(c) and (d).
[37]
They seem to draw two arguments. One is that this is further evidence
that the Commission had pre-ordained its ultimate conclusion. It was looking
for a way to dismiss the complaint at this early stage. That is part of the
bias argument. Second, somehow the applicants would have been prevented from
arguing their case.
[38]
Contrary to the applicants’ allegation, paragraph 41(1)(d) is
neither vague nor arbitrary. “Frivolous” is a term of art whose meaning is well
known. The motion to strike under the Federal Courts Rules, SOR/98-106,
uses language quite similar to that of paragraph 41(1)(d). The case-law
is abundant to the effect that the test applicable in that context is whether
it is plain and obvious that the claim cannot succeed because, for instance,
there is no reasonable cause of action. For instance, our Court has ruled in Hérold
v Canada Revenue Agency, 2011 FC 544 [Hérold] that:
[35] Third,
the test for determining whether or not a complaint is frivolous within the
meaning of section 41(1)(d) of the Act is whether, based upon the
evidence, it appears to be plain and obvious that the complaint cannot succeed.
[39]
The test under paragraph 41(1)(d) is not any more vague or
arbitrary than the test under Rule 221.
[40]
There is simply no air of reality to the argument that paragraph 41(1)(d)
is an instrument that can be abused to reach a pre-ordained conclusion. It is a
test known to law.
[41]
Then, the applicants contend that they have not been given an
opportunity to comment on submissions made by the respondent. As far as I can
see, the only authority referred to by the applicants is Canada Post
Corporation v Barrette, [2000] 4 FC 145, [Barrette] which is not on
point. The applicants have sought to rely on Barrette for the
proposition that the courts will look dimly at the Commission for not having
dealt seriously with its complaint. Presumably, that includes an ability
afforded complainants to comment on submissions made by respondents. In
particular, they referred often to paragraph 22, which reads:
[22] It
seems to me, having read the memorandum of fact and law of the Commission and
heard from its counsel, that the Commission does not take very seriously the
preliminary screening process set out in section 41 of the Act. It is true that
the courts have repeatedly held that they would not intervene lightly with
decisions of the Commission made in the performance of its screening function
under section 44 of the Act and even less so when the decisions are made in the
performance of the Commission’s preliminary screening function under section 41
of the Act. However, these judicial rulings were made on the assumption that
the Commission did in fact perform its functions under these two sections and
that it did not do so lightly.
[42]
In Barrette, the Court of Appeal was critical of the Commission
for not performing its vetting role as mandated by law. Where the Court of
Appeal speaks of the Commission not taking very seriously the preliminary
screening process, it does not refer to the Commission excluding too many
complaints, but rather that the Commission was not vetting properly. Here, the
Commission has performed its screening role, albeit not to the satisfaction of
the applicants.
[43]
Be that as it may, the comment made at paragraph 22 in Barrette
seems to me to apply either way. The Commission must perform its role very
seriously and not lightly, either to proceed with a complaint or to decline to
proceed with a complaint. I have no doubt that the Commission endeavors to do
so but, in appropriate cases, the lack of seriousness would be examined under
the reasonableness standard. The exercise of a power done lightly will seldom
be reasonable.
[44]
To a large extent, the Commission is the master of its own procedure. It
must however satisfy some basic requirements. As this Court put it in Deschênes
v Attorney General of Canada, 2009 FC 1126:
[10] That
said, matters of procedural fairness are reviewable against the standard of
correctness (Bateman v Canada (Attorney General), 2008 FC 393, at
paragraph 20). Procedural fairness dictates that the parties be informed of the
substance of the evidence obtained by the investigator which will be put before
the Commission and that the parties be provided the opportunity to respond to
this evidence and make all relevant representations in relation thereto: SEPQA,
above; Lusina v Bell Canada, 2005 FC 134, at paragraphs 30 and 31.
[45]
That requirement was met in this case. The March 13 letter was seeking
the parties’ submissions. As pointed out earlier, the respondent chose not to
make specific submissions (letter faxed on April 4). The applicants made
extensive submissions three days later; they received a copy of the
respondent’s response to the invitation to make submissions, dated April 4, on
April 12. As already noted, there was no respondent’s submission other than
indicating its agreement with the report. The applicants were able to comment
and, as a matter of fact, they did. That, in and of itself, makes it difficult
to complain that no opportunity was afforded to respond to submissions. Procedural
fairness was afforded fully in my view: they were given a full opportunity to
respond.
[46]
As put eloquently by Hugessen J.A. in Slattery v Canadian Human
Rights Commission (1996), 205 NR 383:
[1] We
are all of the view that the Commission fully complied with its duty of
fairness to the complainant when it gave her the investigator’s report,
provided her with full opportunity to respond to it, and considered that
response before reaching its decision. . . .
3. Was
the Commission’s decision to apply paragraph 41(1)(d) unreasonable?
[47]
The applicants did not make submissions on the standard of review
applicable other than to state in their submissions to this Court that “(T)he
tactical shift from subsection 41(1)(c) to subsection 41(1)(d) of
the Act is to avoid the strict standard of correctness on jurisdictional issues
in judicial reviews at the Federal Court …”.
[48]
In my view, the standard of review of the decision of the Commission to
decline to pursue the matter in application of paragraph 41(1)(d) calls
for a standard of reasonableness. The respondent has referred to decisions of
this Court where the reasonableness standard was used (Bateman v Attorney
General of Canada, 2008 FC 393; A.J. v Attorney General of Canada, 2008 FC 591; Hicks v Attorney General of Canada, 2008 FC 1059). Reference can
also be made to Wu v Royal Bank of Canada, 2010 FC 307, and especially Morin
v Canada, 2007 FC 1355 and Hérold v Canada Revenue Agency, supra.
[49]
In the case at bar, the Court deals with the application of a standard
known to the Commission on the basis of the facts disclosed in the complaint.
The Commission’s decision is discretionary and benefits from considerable
deference (Greaves v Air Transat Inc., 2009 FC 9, at paragraph 14). The
Federal Court of Appeal spoke in terms of “a remarkable degree of latitude
where it (the Commission) is performing its screening function on receipt of an
investigation report” (Bell Canada v Communications, Energy and Paper Workers
Union of Canada, [1999] 1 FC 113 at paragraph 38). These point clearly in
the direction of a standard of reasonableness (Dunsmuir, supra,
at paragraph 51).
[50]
The standard of reasonableness carries with it a measure of deference.
The Supreme Court of Canada explained carefully what is implied in Dunsmuir:
[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.
[51]
The Commission’s decision was reasonable in that it reached one of the
acceptable outcomes defensible in respect of the facts and the law. Put another
way, it was reasonable to conclude that it was plain and obvious that the
complaint has little likelihood of success. There are many reasons for that
conclusion.
[52]
The complaint, as framed by the applicants, is about a commercial
dispute between a corporation and a government institution. The applicants
complain bitterly that contracts they had with PWGSC have been terminated or
have expired. The Act is not to be used to arbitrate commercial disputes.
[53]
When read together, the June 22, 2012 decision by the Commission and the
report find that there was not an act of discrimination as contemplated by
the Act. As pointed out during the hearing of this case, it is only a
discriminatory practice described at sections 5 to 14.1 of the Act that can be
the subject of a valid complaint (section 4 of the Act). The complaint referred
to paragraph 7(b) and sections 11, 13, 14(1) and 14.1. It was obvious
that section 11 (equal wages between male and female employees performing work
of equal value), section 13 (hate messages by means of the facilities of a
telecommunication undertaking), section 14 (harassment in limited
circumstances) and section 14.1 (retaliation because complaint had been filed)
cannot find application on the face of the complaint.
[54]
The Commission did not consider either that the relationship between one
of the complainants, Mr. Hagos, and the respondent was such that it
qualifies as one of employment. Thus, paragraphs 7(b) and 14(1)(c)
are of no assistance to the complainants. It follows that the complainants,
including the corporation, cannot succeed, thus making their complaint
frivolous.
[55]
The applicants complained that the report focused on section 7 and did
not discuss the other sections. It appears to me to be clear that the other
sections were hopelessly invoked, without even an air of reality. The only real
issue for further consideration was the applicability of section 7.
[56]
During the course of the hearing, it became apparent that the
applicants’ best argument revolved around subsection 7(b) and paragraph
14(1)(c) of the Act. They read:
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7. It is a discriminatory practice,
directly or indirectly
(b) in the course of employment, to
differentiate adversely in relation to an employee, on a prohibited ground of
discrimination.
14. (1) It is a discriminatory
practice,
(c) in matters related to employment,
to harass an individual on a prohibited ground of
discrimination.
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7. Constitue un acte discriminatoire, s’il est fondé sur un motif de
distinction illicite, le fait, par des moyens directs ou indirects :
b) de le défavoriser en cours d’emploi.
14. (1) Constitue un acte discriminatoire, s’il est fondé sur un
motif de distinction illicite, le faite de harceler un individu :
c) en matière
d’emploi.
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There would have to be, however, a
broad interpretation of the notion of employment, in order to be helpful to the
applicants given the facts of this case. Counsel for the applicants indicated
that he seemed to recall case-law that would bolster his argument that Mr.
Hagos’ complaint could survive. He was given an opportunity to submit such
case-law and he did bring to the attention of the Court the case of Attorney
General v Lapierre, 2004 FC 612 [Lapierre].
[57]
The applicants argue that the employer-employee relationship must be
given a large and liberal interpretation, as was done in Lapierre. Lapierre
speaks of three factors that would be assessed and, in the
words of Justice Pierre Blais, as he then was, they are: “there is a situation
of control, there is some remuneration and the alleged employer derived some
benefit from the work performed.” In that case, Ms. Lapierre had signed a
contract with the Canadian Space Agency which clearly was not intended to
establish the traditional employer-employee relationship. She was not to be
employed by the Space Agency. Nevertheless, the Court found that the factors
listed above were met and agreed with the Commission that it should pursue the
complaint for sexual harassment made in that case.
[58]
As can be readily seen, there was a contract between an
individual, Ms. Lapierre, and a government institution. That is a pre-requisite
in order to consider further the matter, as, “employment” is broadened in the
circumstances of the case to include “a contractual relationship with an
individual for the provision of services personally by the individual”. Hence,
without a contract with an individual for the provision of services personally,
there is no employment, even for the purposes of the Canadian Human Rights
Act. Subsection 7(b) and paragraph 14(1)(c) could not find
application in this case because there was no contract between Mr. Hagos and
PWGSC to provide services personally. The only contract was between the
corporate entity Shamar Maintenance Inc. and a government institution. There
was no contractual relationship as described in section 25 of the Act:
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25. In this Act,
“employment” includes a contractual relationship with an
individual for the provision of services personally by the individual;
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25. Les définitions qui suivent s’appliquent à la présente loi.
“emploi” Y est assimilé le contrat conclu
avec un particulier pour la fourniture de services par celui-ci.
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The case of Lapierre
helps to highlight the basic requirement of a contract with an individual.
There could not have been employment in our case. Thus, it would not have been
reasonable for the Commission to find jurisdiction on the basis of those
provisions.
[59]
Finally, the report examined the statements attributed to employees of
PWGSC. The report considers that there is only one that may draw a link to one
of the grounds listed at section 3 of the Act. The report concludes however
that the termination of the contract was due to the business relationship, not
that possible link to a ground listed at section 3. I cannot see how such
conclusion was unreasonable in view of the facts revealed in the complaint.
[60]
Upon reflection, I wonder if the argument made by the applicants
concerning the application of the “frivolous” standard does not proceed from a
misunderstanding. As suggested recently by the Supreme Court of Canada, “…
legal terms of art are not always self-defining …” (Her Majesty the Queen v
MacDonald, 2014 SCC 3, at paragraph 72). The applicants, in their written
submissions, seem to fault the Commission because it was pronouncing on the
merits of the complaint without even investigating the facts. At paragraph 35
of their submissions to this Court, the applicants speak of “subsection 41(1)(d)
of the Act is substantive and fact-driven, giving the CHRC the possibility not
to deal with a complaint on the basis that the factual matrix renders a
complaint frivolous”. The applicants seem to have taken the word “frivolous” to
mean “foolish, lightearted, not sensible or serious” (The Canadian Oxford
Dictionary, Oxford University Press Canada, 2001) instead of “lacking a
legal basis on legal merit” (Black’s Law Dictionary, 7th ed.,
West Group).
[61]
With respect, the latter meaning represents the scope of the analysis
under section 41 and it is the kind of analysis conducted by the Commission in
this case. Taking the complaint as it is, the Commission has to decide whether
the complaint had some likelihood of success. It concluded that a corporation
cannot bring itself as a victim of discrimination under the Act. It also
concluded that Mr. Hagos, the second complainant, could not have the
benefit of the Act because the prohibited discriminatory practices under the
Act did not fit the circumstances presented in the complaint; none of the
discriminatory practices invoked by the applicants could apply and the crux of
the matter was actually the business relationship between the applicants and
PWGSC. Thus, the complaint had no legal basis, no legal merit. The Commission
did not even suggest that it was commenting on the statements alleged to have
been made. As such it did not suggest any foolishness or lack of seriousness.
The matter was to be addressed and decided at a different level. The Commission
merely applied the law to the complaint and, without making any finding on the
credibility of the allegations, whether the words, if spoken, were appropriate
or not, concluded that it could not succeed because it falls outside of the
Act. That was reasonable, as the notion is described in Dunsmuir, above,
and the Court must show a measure of deference (Newfoundland and Labrador Nurses’
Union, supra, at paragraphs 17 and 18).
[62]
As a result, the application for judicial review must be dismissed. As
for the issue of costs, the Rules of the Federal Courts provide a broad
discretion. The integrity of at least three officers of the Commission was
impugned by the applicants. As I have tried to show, these accusations were
baseless. Costs are granted to the respondent. Counsel for both parties were
clear that they would be satisfied with rule 407, the default position, unless
the Court orders otherwise. In view of the fact that the respondent did not
seek higher costs, they shall be assessed in accordance with column III of the
table to Tariff B.
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