Date:
20140313
Docket:
T-2126-12
Citation:
2014 FC 247
Ottawa, Ontario,
March 13, 2014
PRESENT: The
Honourable Madam Justice McVeigh
BETWEEN:
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CANADIAN MUSEUM OF CIVILIZATION
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Applicant
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and
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PUBLIC SERVICE ALLIANCE OF CANADA & HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY TREASURY BOARD
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision by the Canadian Human
Rights Commission (the Commission) to deal with a complaint against the Canadian Museum of Civilization Corporation (CMCC or the Applicant) under subsection 41(1)
of the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA). The decision
by Acting Chief Commissioner, David Langtry, is dated September 5, 2012, and was
received on October 25, 2012.
I. Background
[2]
The
subject of the Commission’s decision under review is one of two longstanding
gender discrimination based pay equity complaints filed by the Public Service
Alliance of Canada (PSAC), and involving the CMCC as the Applicant in this
matter.
[3]
The
first complaint (Complaint T915/3504, or Complaint One), was filed in 2000 and
names the CMCC as the sole Respondent. The complaint alleges pay inequity in
conduct alleged to have occurred from April 1999 and ongoing. Eventually, the
parties in 2008 entered into Minutes of Settlement with a release that specifically
mentions that the Complaint T915/3504 is released.
[4]
A
second complaint was filed by PSAC in 2002 (Complaint 20010943, or Complaint
Two). In this complaint, the Treasury Board was named as the Respondent along
with 29 (in some materials 28) other Respondents & Co-Respondents. The
Respondents consisted of 21 organizations, under the Canada Labour Code,
R.S.C. 1985, c. L-2 (Labour Code), and seven others including CMCC under Part
II of the Public Service Staff Relations Act (SC 2003, c 22, s 2)
(PSSRA) and (Canada) Treasury Board (TB). Complaint Two alleges pay inequity in
conduct alleged to have occurred from March 1985 and onwards. This complaint is
the subject matter of the decision that is before the Court with PSAC and TB as
Co-Respondents.
A. Legislative Context
[5]
The
CHRA establishes the framework that the Commission is to follow when handling
complaints filed with it. At the first step, under subsection 41(1), the
Commission is obliged to deal with any complaint filed with it, unless it
appears to the Commission that the complaint amounts to one of five enumerated
exceptions. Subsection 41(1) is attached as Appendix A.
B. Complaint One: PSAC Complaint
Filed Against CMCC
[6]
On
March 6, 2000, PSAC filed Complaint One.
[7]
PSAC
in Complaint One submitted that CMCC’s “new job evaluation plan” (the Wyatt
plan) resulted in underpayment of predominantly female jobs in comparison to
predominantly male jobs of equal value and thus contravened sections 10 and 11
of the CHRA. Allegedly, the Applicant’s conduct that occurred from April 1999
onwards gave rise to the complaint.
[8]
The
subject matter of Complaint One pertained to the CMCC’s Wyatt plan, drafted following
its creation in 1990 as a crown corporation. The plan was implemented on March
10, 1998, with the signing of a memorandum of understanding between the parties.
As part of this memorandum, the parties agreed to form a committee to ensure
the plan met the requirements of section 11 of the CHRA and the Equal Wages
Guidelines of 1986.
[9]
The
Commission referred this complaint to the Canadian Human Rights Tribunal but prior
to any decision; the parties resolved it on May 14, 2008. The parties entered
into Minutes of Settlement and executed a release (the Release).
[10]
The
Minutes of Settlement state that the parties agreed to the settlement following
a discussion of the issues in Canadian Human Rights Tribunal File Number
T915/3504. In the settlement was a release reproduced below:
“The Public Service Alliance of Canada (“PSAC”) (...)
hereby releases and forever discharges the Canadian Museum of Civilization (…)
from any and all actions, causes of action, suits, claims and demands, (…)
arising out of the design or implementation of the Wyatt Job Evaluation Plan
(“Plan”) or the revisions to the Plan as contemplated by the Minutes of
Settlement, and (…) particularly, it releases the Releasees from any and all
claims that were advanced or which could have been advanced in Complaint
T915/3504 before the Canadian Human Rights Tribunal (“Complaint”).
(…)
FOR THE SAID CONSIDERATION, THE RELEASOR covenants,
represents and warrants that it has no further claims against the Releasees
for, or arising out of matters that are the subject of this Full and Final
Release. In the event that it should make any further claims or demands or
commence or threaten to commence any actions, claims or proceedings or make any
complaints against the Releasees, arising out of matters that are the subject
of this Full and Final Release, this Release may be raised as an estoppel, and
complete bar to any such claims, demands, actions, proceedings or complaints.”
C. Complaint Two: PSAC
Complaint Against Treasury Board and Other Organizations
[11]
Complaint
Two was filed on January 9, 2002.
[12]
PSAC
submitted that employees employed by “separate employers” were similarly
entitled to pay equity adjustments that had been awarded by a decision of the
Canadian Human Rights Tribunal in 1998 to employees employed directly by the TB.
In Complaint Two, PSAC alleged that separate employers had maintained
differences on wages between employees performing work of equal value. PSAC
alleged that the conduct that gave rise to the complaint occurred from March 8,
1985 and ongoing.
[13]
The
Commission’s Investigator Girish Parekh’s report dated October 31, 2003,
recommended that pursuant to paragraph 41(1)(e) of the CHRA that they deal with
the complaint because the alleged discriminatory act was ongoing. He also
recommended that pursuant to paragraph 41(1)(b) they not deal with it at this
time.
[14]
The
parties filed further submissions in response to this October 2003 report.
In a decision dated March 16, 2004,
the Commission informed CMCC it would deal with the complaint pursuant to subsection
41(1) of the CHRA, since the alleged discriminatory act was on-going. However,
the Commission explained it would not deal with the complaint under paragraph
41(1)(b) of the CHRA at that time because (1) the complaint could be dealt with
more appropriately under the Federal Courts Act, RSC, 1985, c F-7, and
(2) the complainant was pursuing a civil action against the TB in PSAC in Nycole
Turmel v Her Majesty the Queen in Right of Canada. The letter says
“Accordingly, the file on this matter has now been closed.” The Commission
informed the Applicant it had 30 days to contest the decision by judicial
review before the Federal Court.
[15]
On
February 2, 2011, Fiona Keith (Resolution Services Team Leader) of the
Commission updated the parties regarding the status of its decision to deal
with the Complaint Two by saying:
•
Complaint
Two had been reactivated on October 17, 2008 at the request of PSAC, prior to
which the claim had been in abeyance (emphasis added) while PSAC pursued
a claim in the Federal Court, a claim which was ultimately discontinued
September 24, 2008;
•
They
discussed who the current Respondents were and that it retained jurisdiction to
deal with the complaint against the TB and the separate employees regulated
under the Labour Code;
•
They
acknowledged an objection by the TB requesting that the Commission not deal
with the complaint pursuant to paragraph 41(1)(e) since it was over 1 year old.
But said it would not be considered since the Commission had already made a
determination on March 16, 2004, that the complaint would be dealt with because
of the alleged discrimination is ongoing.
[16]
Further
the correspondence from the Commission’s Resolution Services Team Leader informed
the CMCC of the process that would be followed. This process included giving
the CMCC opportunities to make submissions on paragraphs 41(1)(c) and (d) of
the CHRA. Namely whether the TB is the employer, whether the employees work in
the same establishment, and whether the complainant did not exhaust the other
procedure.
[17]
The
letter set out the factors that the Commission will consider when it makes its
determination under paragraph 41(1)(d) regarding the TB. They also said they
were not addressing the substance of the complaint and the review will be
limited to the issues set out above.
[18]
Once
they had the parties’ submissions they would prepare a report and the parties
would have an opportunity to comment on the report by making written
submissions. Following which, any submissions received and a copy of the report
would be placed before the Commission for them to make their decision.
[19]
CMCC
responded on April 15, 2011, to the eventual author of the decision, Marion Van
de Wetering of the Commission (Resolution Services Division). These written
submissions set out the CMCC’s position on why the Commission should decline to
deal with the complaint:
•
First,
it submitted the May 2008 release was a complete bar to the complaint as it
amounted to a release of all past pay equity claims;
•
Second,
if the scope of the Release was found to only apply to matters subsequent to
April 1997, then the residual discrimination alleged would have occurred prior to
1997, and would be out of time;
•
Third,
the TB and the Applicant are separate employers thus no basis to attribute
historical pay equity findings against the TB to the Applicant.
[20]
On
or about January 12, 2012, by letter, Glen St. James, A/Early Resolution Team
Leader of the Commission informed CMCC that following its letter of February 2,
2011, a report had been prepared based on the issues raised under paragraphs
41(1)(c) and (d). The letter directed that they could provide to Marion Van de
Wetering of the Commission submissions limited to the issues under paragraph 41(1)
(c) and (d) of the CHRA. It instructed that submissions were due by February
22, 2012, and would be put to the Commission when it reviews the report and
made its decision.
[21]
This
initial “Section 40/41 Report” (the Report) by Marion Van de Wetering,
Resolution Services Division, recommended to the Commission that the complaint
against CMCC not be dealt with.
[22]
With
respect to CMCC, the Report recommended not dealing with the complaint because
it appeared the settlement and Release covered pay equity issues arising after
the formation of the CMCC that could have been raised in the settlement
negotiations.
[23]
The
letter accompanying the Report said after further submissions the Report would
be submitted to the Members of the Commission for a decision on the complaint
issues under paragraphs 41(1)(c) and (d) of the CHRA. The letter reiterated
that the Commission’s ultimate decision as to whether to deal with the
complaint would be based on both the Report and further submissions by the
parties of which they were invited to do by sending information to Marion Van
de Wetering of the Early Resolution Team of the Commission.
[24]
On
April 16, 2012, PSAC responded to the Report with further submissions though
they relied heavily on past submissions. In a specific appendix pertaining to CMCC,
PSAC disagreed with the Report’s finding that the pay equity issues could have
been raised in the Release. PSAC submitted that based on the language of the
Release, the compensation settlement under the Wyatt plan was payable based on
conduct as of April 1 1997. The time period of the January 2002 complaint was
between July 1, 1990 to March 31, 1997, which was prior to the commencement of
the Release. PSAC’s position was it was not plain and obvious the Release did
not apply.
[25]
CMCC’s
response on July 6, 2012 to PSAC’s comments they received on June 11, 2012,
said their position did not changed from their submissions of April 15, 2011.
That position was that the Release is an unrestricted “full and final release”
and is complete bar to the PSAC complaint as it pertains to CMCC. CMCC’s submission
spoke of another settlement in a File T979/9904 that specifically mentioned it
did not impact Complaint Two and that other carve outs for this claim were
included in other parties’ Letter of Intent. Moreover, CMCC submitted that if
PSAC wanted to exclude their 2002 complaint from the Release, it should have
asked for that during the negotiations, and that Schedule 1 of the Minutes of
Settlement included a negotiated cut-off date of 2005.
[25]
[26]
The
TB made submissions on July 19, 2012, and was in full agreement with the Report
dated January 10, 2012.
[27]
On
September 5, 2012, the Commission decided to deal with the section 7, 10, and
11 allegations that PSAC had brought against the TB, with CMCC named as Co-Respondents,
but declined to deal with allegations against CMCC as an individual Respondent
under paragraph 41(1)(c) of the CHRA.
II. Issues
[28]
The
issues in the present application are as follows:
A.
Did the Commission err in failing to consider whether the complaint against
the CMCC was out of time?
B.
Did the Commission fail to consider CMCC’s April 15, 2011 submissions?
C.
Was the Commission’s decision to deal with the complaint against the CMCC reasonable?
III. Standard of Review
[29]
The
parties disagree on the applicable standard of review.
[30]
The
Applicant (CMCC) submits the issue before the court is whether the Release
estopped the Respondent from pursuing its complaint against the Applicant and should
be reviewed on a correctness standard.
[31]
The
Respondent (PSAC) submits the issue is to review the Commission’s conclusion
that it was not plain and obvious that paragraph 41(1)(d) applied to the
complaint. It submits this involves assessment of facts, interpretation of the
Commission’s home statute, and a review of the exercise of the Commission’s
discretion. Thus it submits this matter is reviewable on a reasonableness
standard.
[32]
Decisions
by the Commission to deal with complaints under subsection 41(1) of the CHRA
are subject to review on a standard of reasonableness (Ayangma v Canada (Attorney General), 2012 FCA 213, at para 56 (Ayangma); Exeter v
Canada (Attorney General), 2012 FCA 119, at para 6 (Exeter); Canada (Attorney General) v Maracle, 2012 FC 105, at paras
19-22 (Maracle)).
[33]
This
includes the review of decisions by the Commission to deal with complaints
under paragraph 41(1)(e) of the CHRA (Bredin v Canada (Attorney General),
2008 FCA 360, at paras 5, 16; Richard v Canada (Attorney General), 2010 FCA 292, at para 9).
[34]
The
Applicant submits the issue before the Commission here amounted to a legal
question that required interpreting the Release to determine whether it
rendered the complaint beyond the jurisdiction of the Commission, time barred,
or in bad faith. It relies on Keith v Correctional Service of Canada, 2012 FCA 117 (Keith), as authority that where the scope of the
Commission’s jurisdiction is at issue, the applicable standard of review to
their decisions is correctness.
[35]
The
Federal Court of Appeal reviewed that decision on a correctness standard
because the underlying issues involved the division of powers between
Parliament and the provinces, and the jurisdiction of two or more competing
specialized Tribunals, issues necessarily subject to correctness review (Keith,
above, at para 53).
[36]
The
correctness standard applied in Keith, at para 53, to the review
of a Commission’s decision to decline to deal with a complaint under paragraph
41(1)(c), amounts to an exception to the general standard stated above, and is
not applicable here
[37]
The
issue before the Commission was not whether the Applicant’s complaint was
governed by the CHRA, a question that raised the jurisdiction of competing
federal and provincial human rights bodies, nor did it involve the division of
powers between the provinces and Parliament.
[38]
The
Commission at this stage is not required to interpret the scope of the Release.
At this preliminary stage, the Commission screens the complaints to identify
those requiring further investigation. They screen out only those complaints
where it is plain and obvious that the complaint falls into one of the 5
exceptions in subsection 41(1) (Keith, at para 50; Maracle, at
paras 38-41).
[39]
These
amount to questions of mixed fact and law, that are well within the
Commission’s jurisdiction, expertise, and familiarity, for which the standard
is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at paras 51, 53).
[40]
Questions
of procedural fairness are to be reviewed on a standard of correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 43 (Khosa)).
This includes questions involving whether the April 15, 2012 submissions by
CMCC were considered by the Commission (Ayangma, at para 56; Exeter, at para 6).
IV. Analysis
A. Did
the Commission Err in Failing to Consider Whether the Complaint Against CMCC was
Out of time?
[41]
Timeliness
objections under paragraph 41(1)(e) were not before the Commission for its
September 5, 2012 decision. This issue was addressed and had already been
decided by the Commission.
[42]
In
the February 2, 2011 letter that reactivated the complaint, Fiona Keith, Resolution
Services Team leader, with the Commission informed CMCC that timeliness objections
based on paragraph 41(1)(e) would not be placed before the Commission since those
objections had already been decided by the Commission in a March 16, 2004
letter. In contrast, they did invite submissions on paragraphs 41(1)(c) and (d)
of the CHRA.
[43]
Despite
being told that timeliness objections would not be considered by the
Commission, the CMCC raised an objection on the timeliness of the complaint and
the applicability of paragraph 41(1)(e) in their April 15, 2011 submission to
the Commission.
[44]
The
CMCC’s April 15, 2011 objection pursuant to paragraph 41(1)(e) was both
acknowledged, and addressed in the Section 40/41 Report. The Report rejected
the Applicant’s objection since it considered the issue had been decided in the
March 16, 2004 decision.
[45]
CMCC’s
counsel, David Law, responded to the March 16, 2004 decision by stating that
they were not bringing a Judicial Review of that decision but if it was re
opened they would bring an application for an extension of time to the Federal
Court. There have been no applications for extension of time of the 2004
decision
[46]
Consequently,
I agree with the Respondent that this it is not an issue before this court and
I find the Commission did not err by failing to address CMCC’s objection under
paragraph 41(1)(e).
B. Did the Commission fail to
consider the CMCC’s April 15, 2011 submissions?
[47]
CMCC
submits the Commission erred in failing to consider their April 15, 2011
submissions. In support, CMCC points to the certified tribunal record that did
not include the April 15, 2011 submissions to the Commission.
[48]
I
find the CMCC’s April 15, 2011 submissions were considered and for the reasons
below there was no unfairness or error in the manner in which they were
considered.
[49]
The
Commission is master of its own procedure in determining whether to deal with
complaints (Canada (Attorney General) v Sketchley,
2005 FCA 404, at para 119). The Commission followed the procedure that had been
explained to CMCC and did not commit a reviewable error.
[50]
In
the February 2, 2011 letter informing CMCC that the complaint had been
reactivated, Fiona Keith, explained the procedure that would be followed by the
Commission in making its decision. Included in the letter was that the
Commission would not deal with timeliness objections based on paragraph
41(1)(e).
[51]
The
parties were invited to make submissions on paragraphs 41(1)(c) and (d) and
were told those submissions would form the basis of a Report to be submitted to
the Commission. They were told they would have an opportunity to comment on the
Report by making further written submissions. Then a copy of the Report and any
written submissions received would be placed before the Commission for its
ultimate decision on whether to deal with the complaint.
[52]
When
the Commission received the PSAC’s submissions, on June 11, 2012, Marion Van de
Wetering, Early Resolution Advisor, provided CMCC with PSAC’s submissions dated
April 16, 2012. The correspondence explained Cmcc
could make submissions and that those submissions, PSAC’s submissions and the
Report, would be placed before the Commission, to be considered. On July 6,
2012, CMCC filed submissions to be considered.
[53]
Submissions
were made on July 19, 2012 on behalf of Treasury Board Secretariat that stated
they were in full agreement with the Investigator in the Report dated January
10, 2011 and relied on its submissions dated April 14, 2011 and April 16, 2012,
with regards to the relationship with the Labour Code, Respondents to the
complaint.
[54]
In
addition to the paragraph 41(1)(d) issues common to all the Respondents, the
issue of whether the complaint against the CMCC was trivial, frivolous,
vexatious or made in bad faith, because the Release was to be dealt with.
[55]
The
Report says they did not ask for the parties’ submissions on this issue as they
had them on the general paragraph 41(1)(d) issue and that CMCC could comment on
them when the Report was sent to them.
[56]
CMCC’s
position is that the Commission deciding to deal with the claim meant they must
not have considered the April 15, 2011 submissions. They submit that the
Commission needs no more evidence to determine what they say is purely a
question of law regarding the Release and should have done it at the screening
stage. To do otherwise means they did not consider the April 15, 2011
submissions.
[57]
The
response by CMCC, dated July 6, 2012, is two pages and says they are relying on
their April 15, 2011 submissions regarding the Release.
[58]
In
the Report, the CMCC’s position is set out at points 190 -198. Note that they
are the Respondent in the Report. CMCC’s position is set out in detail that
could only have been garnished from the April 15, 2011 nine page long detailed
submissions. My review of the Report and CMCC’s April 15, 2011 submissions
confirm that CMCC’s position is garnished directly from the April 15, 2011
submissions.
[59]
When a
Commission provides brief reasons for adopting recommendations from an
investigator’s report, the investigator’s report forms part of the
Commissioner’s reasoning, and is subject to judicial review along the same
highly deferential standard (Canada (Attorney General) v Sketchley, 2005
FCA 404, at paras 37-38; Bergeron v Canada (Attorney General), 2013 FC
301, at paras 28, 35).
[60]
Though
the Commission’s reasons were not brief, this same reasoning applies as all of
the submissions over the years were substantial and it would be unreasonable to
expect them to recite each on in their decision. In this case the Report sets
out in great detail the CMCC’s April 15, 2011 submissions thus making it not necessary
for the decision of the Commission to recite those same arguments.
[61]
Another
explanation is that the Commission at the start of the decision does say that
he read all of the material including the jurisprudence that had been submitted
by the parties. Just as the submissions were not physically in the CTR nor was
the jurisprudence. A possible explanation is that is could have been a clerical
error in preparation of the CTR. Or that it was not necessary to include them
as Federal Courts Rule 317 provides “the material relevant to an
application….and not in the possession of the party….” In this case CMCC is
referring to material that they are in possession of as it was correspondence
from them. This error could have been dealt with by the parties by Federal
Courts Rules in advance of this hearing.
[62]
I
find there was no breach of procedural fairness as the April 15, 2011
submissions by CMCC were considered by the Commission.
C. Was the
Commission’s decision to deal with the complaint against the CMCC reasonable?
[63]
Justice
Rothstein (as he was then) in Canada Post Corp v Canada (Canadian Human
Rights Commission) (re Canadian Postmasters and Assistants Assn), [1997]
FCJ 578, aff’d [1999] FCJ No 705 (Canada Post Corp) established the legal
test, and the Federal Court of Appeal and Federal Court both continue to apply
this test in reviewing decisions of complaints under subsection 41(1) of the
CHRA (Keith, at para 50; Maracle, at paras 38-41).
[64]
The
threshold is high and “The Commission should decline to hear the case at this
stage in plain and obvious cases” (Canada Post Corp, at paras 3-4).
[65]
In
Canada Post Corp v Barrette, [2000] 4 FC 145 (FCA) (Barrette),
the Federal Court of Appeal held that parties do have the right to seek an
early brushing aside of complaints that fall into one of the exceptions. The
Commission is asked no more than to examine on a prima facie basis
whether the grounds set out in subsection 41(1) and the Commission can still decide
to deal with the complaint (Barrette, at paras 22-25).
[66]
CMCC
submits the Commission do an early brushing aside of a complaint because of the
Release and the Minutes of Settlement. They rely on Barrette and Keith,
above.
[67]
It
is true that the CHRA at subsection 44(3) has a broad discretion to decide
whether to screen out a complaint at this stage or whether it should go before
a tribunal.
[68]
Correctly
the Commission said its’ role under subsection 41(1) is to apply a high
threshold in screening complaints and limit the exercise of its discretion to
screening out complaints to situations where it established that it is plain
and obvious that the complaint should not be dealt with. Unless this decision
was unreasonable or there was a breach of the duty of fairness then the Court
will not interfere.
[69]
CMCC
argues that starting the present litigation five months after executing the
Release, when the correspondence regarding the claim says the file was closed
in 2004 makes the complaint “vexatious and made in bad faith” and should be
screened out and not heard.
[70]
The
argument advanced is that a release is a contract and that “parties who reach a
settlement should be held to their bargains”. CMCC’s position is that a broad release
for all past pay equity claim in connection with the settlement of a 2000 pay
equity complaint must cover the current complaint as that is the subject matter
of the release. They rely on Exeter v Canada (Attorney General),
2011 FC 86, at para 12 (Exeter 2) as authority that the Commission
can decline to deal with complaints under paragraphs 41(1)(d) and 41(1)(e).
[71]
I
note though it was not argued by the parties that the Minutes of Settlement
were approved by the Commission pursuant to section 48 of CHRA on May 28, 2008.
The Commission may have further information regarding the scope of the release
as they approved it.
[72]
CMCC
submits that enforcing a release mirrors the policies of the doctrines of res
judicata and issue estoppel and rely on Apotex Inc v Merck and Co,
2002 FCA 210, at paras 26-29. Encouraging parties to settle disputes and to
rely on releases has a strong public policy interest.
[73]
The
decision says that the Commission can deal with complex issues if they have a sufficient
record before them but in this case they do not.
[74]
The
Commission concluded that it was not plain and obvious whether the allegations
underlying the complaint before it was covered by the Release. Resulting in, PSAC
not being barred at the preliminary stage from proceeding with Complaint Two.
[75]
I
find the Commission was reasonable in its application of those principles for
the reasons that follow.
[76]
The
Commission based this conclusion on its findings made on the language of the Release
itself, and its review of the record before it. The general clause in the Release
releasing CMCC from “any and all claims that were advanced of which could have
been advanced in Complaint T915/3504” left open the question as to whether the
allegations in the Complaint 20010943 before the Commission could have been
advanced as it was not mentioned in the Release and yet had been advanced
already.
[77]
More
specifically the Commission found that:
The Record currently before the Commission does not
fully address this issue. For example, the parties have not explained whether
and if so, how the current allegations could have been advanced in complaint
T915/3504 if the Treasury Board was not a party to that complaint. For these
reasons, it is not plain and obvious that the PSAC should be barred at this
preliminary stage from proceeding with the complaint against the CMCC because
of the release. During the course of the investigation the parties may provide
additional information and submissions regarding the effect of the release and
the impact, if any of the Treasury Board as a party to this complaint.
[78]
When
the Release was being negotiated in 2008, both parties knew of the status of
this complaint, and that no decision with respect to any other subsection 41(1)
exception had been made. Consequently, when the Release was signed, the complaint
remained before the Commission and it was open to either party to negotiate for
an explicit reference to this complaint in the Release.
[79]
The
Federal Court of Appeal has held that a release is a relevant consideration to
the issue of the reasonableness of the Commission’s decision on whether to deal
with complaints (Exeter, above, at paras 25, 34). In my view, the Release
was a relevant consideration in the Commission’s conclusion that is supported
by reasonable findings made regarding the release. The Commission did not
determine if the release was valid or not as this was a screening only and that
is left to be investigated.
[80]
Complaint
One and Complaint Two are separate complaints. While gender based pay equity is
at issue in both complaints, each complaint alleges separate discriminatory
events covering different time periods, and names different respondents.
[81]
It
was a reasonable decision that the Commission did not find it plain and
oblivious that the Release applied to Complaint Two that was revived. Further
support that it was not plain and obvious is found in the discussion below regarding
the TB.
[82]
The
Commission noted that because the TB was named as a Respondent in only one of
the two complaints, it was possible the claims underlying the complaint before
it could not have been addressed by the complaint subject to the Release. It
found the record from the parties did not address this possibility, and
consequently amounted to a topic that could be addressed in an investigation.
[83]
Complaint
One names the CMCC as the sole Respondent and alleges the Application of CMCC’s
new job evaluation plan, first implemented in 1997, resulted in underpayment of
predominantly female jobs in comparison to predominantly male jobs of equal
value and thus contravened sections 10 and 11 of the CHRA. CMCC’s conduct
giving rise to the complaint was alleged to have occurred from April 1999 and
onwards.
[84]
Complaint
Two names the TB as Respondent, and 29 (originally) as either Respondents or Co-Respondents.
In that complaint PSAC alleged (1) that employees of “separate employers” of
the TB were similarly entitled to pay equity adjustments that had been awarded
by a decision of the Canadian Human Rights Tribunal in 1998 to employees
employed directly by the TB, and (2) the employers had maintained differences
on wages between employees performing work of equal value. In this complaint
the conduct giving rise to the complaint was alleged to have occurred from
March 8, 1985 and onwards.
[85]
The
underlying facts of these complaints are not analogous to Exeter, where
a single complaint was at issue and the release named the same single
individual and covered the same time periods subject to that complaint (Exeter
2, above, at paras 2, 6-7) and is distinguishable on our facts.
[86]
CMCC’s
asserts that the Commission closed Complaint Two completely with its March 16,
2004 letter to the parties. Contrary to that submission, when the substance of
that and subsequent correspondence between the parties is reviewed, it is clear
that a determination had been made that they would deal with the complaint
pursuant to subsection 41(1) as “the alleged discriminatory act is alleged to
have been on-going.” In 2004, the Commission decided pursuant to paragraph
41(1)(b) that they would not deal with the complaint at that time because:
•
The
complaint could be more appropriately be dealt with according to a procedure
provided for under another Act of Parliament, i.e. the Federal Courts Act;
•
The
complainant in this complaint is pursuing civil action against one of the major
respondents, the Treasury Board, in PSAC and Nycole Turmel v Her Majesty the
Queen in Right of Canada;
•
Accordingly
the file on this matter has now been closed.
[87]
It
is a concern that the letter says the file is closed rather than saying the
matter is held in abeyance. But in later correspondence such as February 2,
2011 from the Commissioner to the parties it says “The Commission decided to
hold the complaint in abeyance which the ….” and in the submission of the CMCC
by David Law writes they are not bringing a judicial review now in case the complaint
is ultimately resolved. But if it is re-opened then they would bringing an
extension of time to bring a Federal Court application regarding the timeliness
decision. It is reasonable to determine that the entire matter was not closed
but that it was in abeyance while other matters proceeded though they had made
one final determination regarding timeliness.
[88]
It
was reasonable for the Commission to find this complex historical dispute not
to be plain and obvious in order to screen it out without further investigation.
[89]
Given
these differences, the Commission’s finding that it was not plain and obvious
whether allegations in the complaint before it could have been advanced in the
complaint before the Tribunal and named in Release amounts to a reasonable
finding and was not made in bad faith.
[90]
The
Commission found the section 7 and 10 allegations in the complaint before them
appears broader that the claim of wage discrimination and may disclose an
allegation that may be a prohibited practise.
[91]
They
found that based on the record before them it was not plain and obvious that
that the CMCC was not a co-employer with the TB in the complaint and that issue
could be presented under subparagraph 44(3)(b)(ii). The Commission determined
they would not deal with the Section 11 part of the complaint pursuant to
paragraph 41(1)(c) of the CHRA against the CMCC.
[92]
This
matter is fraught with issues and at this screening phase it is not plain and
obvious the Release covers Complaint Two or even if it could as there are
different parties to the two complaints.
[93]
The
Release contains no explicit reference to the current complaint and the
Commission found it was not clear from the language of the Release whether the
current claim was contemplated by the Release. The Applicant has failed to
persuade me that under these circumstances, the Commission’s decision was
unreasonable.
[94]
At
the full investigation stage it can be determined why the Commission said the
file was closed instead of being held in abeyance. These are complicated issues
and both parties were well represented when the Release was executed with the
Commission’s approval of the Settlement as required by the CHRA.
[95]
In sum, I
cannot conclude that the decision is unreasonable. The Commission applied the
correct test, considered all of the evidence and submissions of the Applicant
and rendered a decision that falls “within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9,
at para 47).
There is no reviewable error.
[96]
The
parties were given an opportunity to determine costs but were unable to agree.
[97]
No
costs were sought by and therefore none are awarded to the TB.
[98]
I
order costs to the Respondent, PSAC to be determined at Tariff B Column III and
payable forthwith.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. This Application is
dismissed;
2. Costs
are awarded to the Respondent, PSAC in accordance with Tariff B Column III and
payable forthwith.
"Glennys L.
McVeigh"
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