Docket:
T-509-13
Citation: 2014 FC 138
Ottawa, Ontario, February 10, 2014
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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DAVINDER KHAPAR
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Applicant
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and
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AIR CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr Khaper, the applicant, seeks judicial review
of the decision of the Canadian Human Rights Commission (the “Commission”)
dated February 6, 2013, which decided not to deal with his complaint pursuant
to paragraphs 41(1)(d) and (e) of the Canadian Human Rights Act, RSC 1985,
c H-6 (the “Act”), because the complaint was not made within the requisite time
period and was vexatious.
[2]
The applicant submits that the Commission’s
decision that the complaint was filed beyond the one year statutory time limit
was unreasonable because the last discriminatory act was not the date of his
termination, but a later date, and alternatively, that the Commission
unreasonably refused to consider an extension of the time limit. In addition,
the applicant submits that the Commission failed to give meaningful reasons for
its timeliness findings. The applicant further submits that the Commission’s
decision that the complaint was vexatious, because it was an abuse of process
or barred due to issue estoppel, was unreasonable.
[3]
The applicant also submits that he was denied
procedural fairness because he was not allowed an additional opportunity to
reply to the submissions made by the respondent to the Section 40/41 Report
(the “Report”).
[4]
I find that the applicant’s complaint to the
Commission, which asserted discrimination on the basis of race and ethnic
origin and a mental disability, could and should have been addressed at the
arbitration proceedings. The arbitrator considered the applicant’s grievance of
his termination, which followed from a long history of disciplinary proceedings
at which the applicant never raised the issue of a disability. In addition, due
to the applicant’s claim of a mental disability, the arbitrator reopened the
arbitration process to consider the report of an independent medical
examination of the applicant. This provided an additional opportunity for the
applicant to raise all his human rights allegations, including those based on
ethnic and racial discrimination, but he did not do so.
[5]
The applicant’s allegation that the Commission
rendered its decision in the absence of a complete record is also without
merit. Despite the allegations of procedural unfairness regarding the
arbitration process and the Commission process, the applicant did not seek to
provide the documents which could have filled in the alleged gaps in the
record. As a result, neither the medical evidence, which the applicant asserts
supports his alleged disability, nor the arbitration awards, which the
applicant asserts would shed light on his previous assertions of
discrimination, are before the Court on judicial review.
[6]
The applicant’s explanation to the Court – that
to seek to provide this information would have only invited cross-examination
and further complicated the record – is unsatisfactory. I do not accept the
applicant’s position that the Court should find procedural unfairness because
the Commission adopted the conclusions of the Report without examining the
medical evidence or the arbitration awards. The Commission considered the
Report and adopted it as its reasons. The Report addressed the complaint and
canvassed all the relevant factors regarding timeliness and vexatiousness; it
also considered the parties’ position statements, the complaint, and other
information submitted by the applicant.
[7]
In addition, the Commission had before it the
submissions of the parties in response to the Report. The applicant set out his
position and concerns with respect to all of the issues he now raises on
judicial review. For example, the applicant asserted that the arbitrator did
not consider his human rights issues and that he should have been afforded an
opportunity to cross-examine Dr Cashman, the psychiatrist who conducted the
independent medical examination. Therefore, it cannot be said that the
Commission was unaware of the applicant’s position with respect to the medical
evidence or the previous arbitration awards.
[8]
It appears that the applicant, in an effort to
exhaust every possible way to restore his employment, made a late day assertion
of ethnic and racial discrimination only after his grievances, which were based
on well documented disciplinary proceedings, had been denied. Similarly, the
applicant raised the issue of a mental disability only after several
disciplinary proceedings and benefited from the arbitrator’s agreement to
reopen his grievance to consider the independent medical evidence. However,
based on that independent evidence, the arbitrator again found that there was
insufficient evidence to establish that the applicant had a mental disability
at the time of the misconduct that led to his termination.
[9]
Notably, the applicant was represented by both
his union and legal counsel but did not seek judicial review of the
arbitrator’s decision. Rather, the applicant chose to pursue a complaint of racial
and ethnic discrimination with the Commission.
[10]
The applicant raised the evolving jurisprudence,
including British Columbia (Workers’ Compensation Board) v Figliola,
2011 SCC 52, [2011] 3 S.C.R. 422 [Figliola] and Penner v Niagara
(Regional Police Services Board), 2013 SCC 19, 356 DLR (4th) 595 [Penner],
and takes the position that Figliola does not apply to decisions of the
Commission made pursuant to paragraphs 41(1)(d) and alternatively, that Figliola
has been superseded by the more recent decision in Penner. The
applicant submits that the principles enunciated in Penner should lead
the Court to find that the Commission’s determination that the complaint was
vexatious is unreasonable. While it is acknowledged that Penner could
apply despite that it was decided after the Commission rendered its decision,
on the facts of this case, Penner does not dictate a different result;
the prior arbitration proceedings were not unfair and it would not be unfair to
rely on their results.
[11]
While Penner may encourage the Courts to
take a more liberal view of what constitutes unfairness in exercising its
discretion to not apply issue estoppel, it does not overthrow the principle
that finality in proceedings remains an important objective for the
administration of justice. To justify the exercise of discretion to relieve
against issue estoppel and other related common law doctrines, an applicant
cannot merely assert or speculate about unfairness without any evidence and
without any attempt to provide evidence which would support such assertions.
[12]
The decision of the Commission is reasonable.
[13]
For the more detailed reasons that follow, the
application for judicial review is dismissed.
Background
[14]
In its February 6, 2013 decision, the Commission
decided not to deal with the human rights complaint of Davinder Khaper, the
applicant, on the basis that it was filed out of time and that it was
vexatious. The applicant’s complaint to the Commission alleged discrimination
in employment by Air Canada, the respondent, on the prohibited grounds of race,
colour, ethnic origin and disability.
[15]
The chronology of events which led to the
complaint and the Commission’s decision is set out below.
[16]
The applicant commenced full-time employment
with the respondent on November 24, 1997. He remained employed with the
respondent until he was terminated for time theft on January 22, 2009. Time
theft refers to the practice of reporting for work, or “punching in”, but not
commencing work until later or correspondingly, leaving work without “punching
out”. The labour arbitrator, Mr Teplitsky, upheld the applicant’s termination
after a grievance arbitration hearing in March 2009. The applicant did not
allege discrimination at the arbitration proceedings.
[17]
The arbitrator’s notes indicated that the
applicant’s history of disciplinary proceedings dated back to 1997, that he had
been issued 10 previous warnings and four letters of discipline, that he had
been coached and counselled regarding his time theft behaviour, and that he had
been warned at his last Step V grievance arbitration that he could be
terminated if he engaged in time theft again.
[18]
Mr Teplitsky, also the arbitrator of the Step V
grievance, excused the applicant from serving the 20-day suspension imposed but
the results of the grievance remained in the applicant’s record and included
the clear warning that he could be terminated for further time theft.
[19]
Following the arbitrator’s dismissal of his
grievance, the applicant retained counsel in April 2009. In August 2009, the
applicant obtained a psychiatric report, which he submits established that he
had a disability at the time of his termination.
[20]
On November 12, 2009, the applicant, through his union,
requested that the respondent reinstate him on the basis of the August 2009
psychiatric report. On November 23, 2009, the respondent refused, noting that
the applicant could have raised mitigating circumstances at the time of his
termination but did not. The respondent took the position that the psychiatric
report did not provide a basis to reinstate the applicant because the report
was provided nine months after the applicant’s termination, was prepared by a
doctor who was not treating the applicant at the time, and did not address
whether the applicant had a disability at the time of the misconduct.
[21]
In December 2009, the applicant contacted the
Commission and inquired into the complaint procedure. The Commission sent him
an Intake Kit and advised him of the deadline for receipt of his complaint. The
deadline was later extended to January 22, 2010.
[22]
On January 22, 2010, the applicant mailed his
complaint to the Commission alleging discrimination on the grounds of race,
ethnic origin, colour, and disability in relation to his termination from the
respondent’s employ on January 22, 2009 and the respondent’s refusal to
reinstate him on November 23, 2009.
[23]
On May 26, 2010, the Commission advised the
applicant that his complaint of discriminatory acts was not linked to any
prohibited ground of discrimination and closed his file.
[24]
In December 2010, the arbitrator agreed to
reopen the applicant’s grievance of his termination, on the condition that the
applicant consent to an independent medical examination by Dr Cashman, a
psychiatrist agreed upon by both parties.
[25]
The arbitrator reconsidered the applicant’s grievance
in January 2012. The applicant was represented by both his union and counsel.
[26]
On January 16, 2012, the arbitrator rendered his
decision and upheld the applicant’s termination. The arbitrator noted that, out
of fairness, the applicant had been given an opportunity to advance arguments
about his mental illness, but that any allegations of infringements of his
human rights had been allayed by Dr Cashman’s report, which indicated that
there was “insufficient evidence… to conclude that [the applicant] suffered
from a serious or persistent mental illness… between 1999 and 2009”. The
arbitrator refused the union’s request to cross-examine Dr Cashman.
[27]
Neither the applicant nor the union on his
behalf sought judicial review of the January 16, 2012 arbitration decision.
[28]
In May 2012, counsel for the applicant requested
that the Commission reopen the complaint on the basis that it had been
submitted in the proper form and should have been considered. The Commission
did so and invited submissions from the parties.
[29]
In November 2012, the Commission issued the
Report which set out its preliminary conclusions and recommended that the
applicant’s complaint be dismissed pursuant to paragraphs 41(1)(d) and (e) of
the Act.
[30]
The Report concluded that the complaint was untimely
pursuant to paragraph 41(1)(e). The Report found that the last alleged
discriminatory act was the termination of the applicant’s employment on January
22, 2009. The complaint was therefore filed beyond the one year statutory time
limit. The Report also noted that: the applicant had opportunities to raise
human rights concerns but did not do so until now; the applicant was
represented by his union at the arbitration proceedings and also by counsel
since April 2009; and he provided no reasonable explanation for the delay.
[31]
The Report also concluded that the complaint was
vexatious pursuant to paragraph 41(1)(e), noting that it would be an abuse of
process to allow the applicant to raise new grounds of discrimination before
the Commission when he could have had all his human rights issues dealt with at
arbitration. The Commission reiterated the many opportunities the applicant had
to raise issues of racial and ethnic discrimination, including internal dispute
resolution mechanisms, the March 2009 arbitration regarding his termination,
and the subsequent arbitration in January 2012 that considered the independent
medical examination conducted by Dr Cashman.
[32]
As is customary, both parties had the
opportunity to make submissions in response to the Report.
[33]
The respondent initially submitted brief
comments indicating agreement with the Report.
[34]
The applicant’s submissions addressed both the
timeliness and vexatiousness issues and disagreed with the recommendations.
With respect to timeliness, the applicant argued that the last alleged act of
discrimination was not January 22, 2010, the date of his termination, but on
November 23, 2009, the date of the respondent’s letter refusing to reinstate
him based on his August 2009 psychiatric report. The applicant submitted that
the jurisprudence has established that a duty to accommodate may exist after an
employee has been terminated (Ottawa Civic Hospital and ONA
(Hodgins), Re, [1995] OLAA No 60 at paras 47-48, 48 LAC 388 (4th) [Hodgins];
Vos v Canadian National Railway, 2010 FC 713 at para 54, 373 FTR 124 [Vos].
[35]
Alternatively, the applicant argued that the
Commission should extend the one year time limit because the 19 day delay was
incurred in good faith and the employer would not be prejudiced by the delay.
[36]
With respect to the finding that the complaint
was vexatious, the applicant submitted that Figliola, which had been
cited in the Report, does not apply at the preliminary screening stage of the
Commission’s inquiry because the decision considered a specific provision
of the Human Rights Code of British Columbia, which differs from the Act. The
applicant referred to jurisprudence which should apply, including Boudreault
v Canada (Attorney General) (1995), 99 FTR 293, [1995] FCJ No 1055 [Boudreault]
and Canada Post Corp v Barrette, [2000] 4 FC 145, [2000] FCJ No 539
(FCA) [Barrette].
[37]
On January 10, 2013, the respondent filed
additional submissions in response to the Report. The respondent addressed the
timeliness issue and noted that the applicant should have sought judicial
review of the decision or filed an application against his union if he was
dissatisfied. The respondent also referred to five labour arbitration decisions
by way of a footnote, which were not mentioned in the Report. These decisions,
which were rendered between 1991 and 2009, establish that the onus is on a
grievor to establish how a medical condition affected his judgment during
employment. The respondent also noted that the arbitrator considered the
medical evidence and determined that it was insufficient to excuse the
applicant’s conduct. In addition, the respondent submitted that the applicant’s
allegations of racism were completely unsupported.
[38]
On January 23, 2013, the applicant requested
that the Commission permit him to reply to the respondent’s submissions of
January 10, 2013, on the basis that new issues had been raised. The Commission
refused the applicant’s request to file further submissions.
The decision of
the Commission
[39]
The Commission rendered its decision on February
6, 2013.
[40]
With respect to its refusal to deal with the
complaint pursuant to paragraph 41(1)(e) of the Act due to untimeliness, the
Commission adopted the conclusions of the Report:
The Federal Court of
Canada has held that the Commission should not exercise its discretion to deal
with complaints filed more than one year after the last alleged act of
discrimination in situations where the complainants are represented by legal
counsel. In 168886 Canada Inc. v. Reducka, 2012 FC 537 at para 23, the
Court held that the complainant ‘failed to provide justifiable reasons why he
was unable to bring his complaint in a timely manner, and this is inexcusable
given that he had the benefit of legal representation throughout.’ In Johnston
v Canada Mortgage and Housing Corporation, 2004 FC 218 at para 26, and Zavery
v Canada (Human Resources Development), 2004 FC 929 at para 9-10, the
Federal Court held that it is inappropriate for the Commission to extend the
limitation period when a complainant has the benefit of legal representation.
[41]
With respect to its refusal to deal with the
complaint pursuant to paragraph 41(1)(d) of the Act due to vexatiousness, the
Commission also adopted and reiterated the conclusions of the Report:
It would appear that
during the course of his employment, the complainant did not, for example, file
internal complaints or grievances raising human rights concerns. At the time of
his termination of employment, he filed a grievance in which did not raise
human rights concern. At the first arbitration hearing, the complainant had the
opportunity to raise and have addressed any human rights concerns he might have
had. It wasn’t until after his grievance was initially dismissed by the
arbitrator, that the complainant raised the issue of disability and sough [sic]
to have the arbitrator reconsider his decision taking into account medical
evidence. Notwithstanding the medical evidence, the complainant’s grievance was
dismissed. The complainant never raised the grounds of race and national or
ethnic origin before the arbitrator, although he could have done so, and it
wasn’t until the filing of this complaint that these grounds were raised for
the first time. To allow the complainant to raise new grounds of discrimination
before the Commission when he could have had all of his human rights issues
dealt with at arbitration would be tantamount to an abuse of process and as
such should be considered vexatious.
Issues
[42]
The applicant submits that the Commission
breached his right to procedural fairness by denying him the opportunity to
reply to the respondent’s further submissions on the Report.
[43]
The applicant submits that the Commission’s
decision regarding untimeliness was unreasonable and that the Commission erred
by failing to give meaningful reasons for its conclusion that the complaint was
untimely.
[44]
The applicant further submits that the decision
to dismiss the complaint as vexatious is unreasonable. The applicant
argues that Figliola, relied upon by the Commission in the Report, does
not apply to a decision taken pursuant to paragraph 41(1)(d) of the Act and
alternatively, if it does, the law has changed with the Supreme Court’s more
recent decision in Penner.
Standard of
review
[45]
The applicable standard of review for questions
of procedural fairness is correctness (Sketchley v Canada (Attorney General), 2005 FCA 404 at para 53, 263 DLR (4th) 113 [Sketchley]).
[46]
There is also no dispute that the applicable
standard of review for decisions of the Commission made pursuant to paragraphs
41(1)(d) and (e) of the Act is reasonableness (Berberi v Canada (Attorney
General), 2013 FC 99 at para 10, [2013] FCJ No
113). As the applicant submits, the Commission must be cautious in determining
whether a complaint warrants further inquiry; the Commission should only
decline to deal with a complaint in plain and obvious cases, because the
Commission’s decision at the screening stage puts an end to the complaint (Canada
Post Corp v Canada (Canadian Human Rights Commission) (1997), 130 FTR 241
at para 3, [1997] FCJ No. 578 (TD), aff’d (1999), 169 FTR 138, 245 NR 397
(FCA), leave to appeal to SCC refused [1999] SCCA No 323; Canada (Attorney
General) v Maracle, 2012 FC 105 at paras 39-42, 404 FTR 173 [Maracle];
Conroy v Professional Institute of the Public Service of Canada, 2012 FC
887 at paras 30-33, 415 FTR 179 [Conroy]).
[47]
However, section 41 of the Act confers on the
Commission ample discretion to decide when not to deal with a complaint at this
preliminary stage (Maracle, supra at para 47). Decisions made
pursuant to section 41 of the Act are, therefore, accorded significant
deference by a reviewing court and accordingly, the scope of judicial review is
narrow.
[48]
The role of the Court in
judicial review where the standard of reasonableness applies is not to
substitute any decision it would have made but, rather, to determine whether
the Commission’s decision “falls within a 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, [2008] 1 S.C.R. 190).
Was the
applicant denied procedural fairness?
[49]
The applicant submits that the Commission denied
him a true and meaningful right of reply to the Report (see Mercier v Canada
(Human Rights Commission), [1994] 3 FC 3 at paras 14 and 19, [1994] FCJ No
361 (FCA) [Mercier]; Islam v Nova Scotia (Human Rights Commission), 2012
NSSC 67 at paras 14 and 24, 38 Admin LR (5th) 289; Exeter v Canada
(Attorney General), 2011 FC 86 at para 10, 383 FTR 106).
[50]
The applicant further submits that by denying
him a right of reply to the respondent’s further submissions, the Commission
made its decision on an incomplete record. He argues that if he had been given
an opportunity to respond, he could have at least commented on the five labour
arbitration cases cited by the respondent, although he does not indicate what
that reply might have been.
[51]
The applicant also submits that the Commission
based its decisions on an incomplete record because it did not have the
essential documents before it when it considered the Report. The applicant
submits that the Commission, having only the Step V arbitration reports and not
the medical reports nor the earlier arbitration decisions, could not have had
the evidentiary basis to reasonably decide that it was plain and obvious to
dismiss the complaint.
[52]
The respondent submits that procedural fairness
requires that the applicant know the case he has to meet and be provided with
an opportunity to respond. The Commission’s preliminary screening process is
not adversarial; the applicant’s case to be met is not the respondent’s
arguments or submissions, but the Commission’s findings as set out in the
Report.
[53]
The respondent emphasizes that both parties had
the opportunity to comment on the Report, and did so.
[54]
Moreover, the respondent submits that its
January 10, 2013 submissions responded directly to the issues raised in the
applicant’s submissions. The respondent acknowledges that the reference to five
labour arbitration decisions in a footnote and the principle established in
those cases was new content, but that these cases directly respond to the
applicant’s assertion that the arbitrator did not deal with his human rights
concerns. The respondent also submits that, contrary to the applicant’s
submissions, the cases referred to are not material because: there is no evidence
that the law relating to the onus on the applicant was a contentious point; the
applicant did not indicate what he would have said in reply; and, nothing in
the Commission’s decision suggests that these cases had any influence.
[55]
The respondent notes that although the
Commission did not have all the documents before it, the Report considered all
the documents submitted by the applicant. The respondent questions why the
applicant did not seek to provide the medical evidence he alleges to be missing
from the record.
The Commission
did not breach the applicant’s right to procedural fairness
[56]
The screening process of the Commission is not
adversarial. The case the applicant must meet is set out in the Report.
[57]
The decision of the Federal Court of Appeal in Mercier,
which the applicant relies on, is distinguishable. In Mercier, the
investigation report was favourable to the applicant. However, Correctional
Service of Canada filed comments that went well beyond the facts relied upon in
the investigation report, which ultimately influenced the Commission’s decision
to decline further action on the complaint. The Court of Appeal concluded that
the claimant was never in a position to foresee the decision the Commission was
going to make. The facts are set out in Mercier, supra at para
17:
17 In the case at
bar, the appellant certainly was never in a position to foresee, a fortiori to
counter, the decision the Commission was going to make, nor to know or even
suspect the grounds on which it would decide not to follow its investigator's
recommendation. The investigation report was in fact favourable to her. The
Service's comments were filed without her knowledge and outside the time limit
which the Commission had imposed and described as mandatory. These comments were
much more than argument based on the facts set out by the investigator in his
report; on the contrary, they were replete with facts that did not appear in
the file that had until then been before the Commission, and went so far as to
attack the appellant's credibility. Moreover, in the Commission's decision of
April 18, 1991 it misled the appellant by suggesting to her that it had before
it only the comments filed by her on December 22, 1990, so that in fact the
appellant would have had to bring legal proceedings to learn what the evidence
was that had apparently led to the Commission's about-face.
[58]
In the present case, the applicant was clearly
aware of the conclusions and recommendations of the Report and he could,
therefore, anticipate the Commission’s decision. The Report canvassed the
timeliness and vexatiousness of the complaint. The applicant, who had the
Report in his hands, would have been aware of the case he had to meet.
[59]
The Court of Appeal held in Exeter v Canada (Attorney General), 2012
FCA 119 at para 23, 433 NR 286, that it was not a breach of procedural fairness
to deny a claimant the right to respond to the other party’s comments on the
section 40/41 report:
23 Ms. Exeter
states in response that the investigator improperly terminated the
cross-disclosure so that she did not in fact have the chance to respond to the
September 8, 2009 submission of her former employer to the Commission. However,
the September 8, 2009 submission of the former employer was simply the
employer's response to Ms. Exeter's reply to the investigator's report. There
is nothing improper or unfair in not allowing a party to file a sur-reply to
another party's reply. The Judge made no error.
[60]
In this case, the applicant made extensive
submissions in response to the Report, in which he referred to his medical
evidence, asserted that he should have been provided an opportunity to cross-examine
Dr Cashman, maintained that the arbitrator had not considered human rights
issues, and argued that his complaint had been filed within the one year
deadline.
[61]
The respondent’s further submissions responded
to the Report and to the issues raised by the applicant. The only issue
addressed by the respondent which was not in direct response to the applicant’s
submissions or the Report was the reference to the legal principle that the onus was on the applicant to establish how his psychiatric
condition affected his judgment during employment, which was supported by a
reference to five labour arbitration decisions by way of a footnote.
[62]
The law relating to the applicant’s onus before
the arbitrator was never an issue in the Report. Moreover, the cases cited
should have been generally known to the applicant as they reflect a well-known
principle. The applicant has not given any indication of what he would have
stated in response had he been given an opportunity to file further submissions
or how any response would have changed the outcome of the Commission’s
decision. I note that nothing in the Commission’s decision suggests that these labour
arbitration decisions had any bearing on its findings regarding timeliness or
vexatiousness.
[63]
With respect to the applicant’s arguments that
the Commission reached its decision on an incomplete record, I agree with the
respondent that the Commission need not examine all the same documents
considered at the section 40/41 stage as that would defeat the purposes of the
preliminary examination .The Section 40/41 report is intended to be a synthesis
to be relied upon by the Commission. The Commission had before it the
complaint, along with the attached Step V arbitration award, the Report, and
the submissions of both parties in response.
[64]
The case law is clear that the section 40/41
stage is for screening. Accordingly, the focus of the Commission is whether
there is sufficient evidence before it to refer the complaint for further
inquiry. It is not the role of the Commission at the section 40/41 stage to
look behind the facts and to determine if a complaint is made out. As the
Supreme Court held in Cooper v Canada (Canadian Human Rights Commission), [1996]
3 SCR 854 at para 53, 140 DLR (4th) 193:
53 The
Commission is not an adjudicative body; that is the role of a tribunal
appointed under the Act. When deciding whether a complaint should proceed to be
inquired into by a tribunal, the Commission fulfills a screening analysis
somewhat analogous to that of a judge at a preliminary inquiry. It is not the
job of the Commission to determine if the complaint is made out. Rather its
duty is to decide if, under the provisions of the Act, an inquiry is warranted
having regard to all the facts. The central component of the Commission's role,
then, is that of assessing the sufficiency of the evidence before it.
[65]
I also note that the applicant did not attempt
to submit additional documents to the Court by way of affidavit to address the
alleged gaps in the record, despite that the law provides exceptions to the
general rule that the Court should only consider the material that was before
the decision maker in judicial review. The case law, including Association
of Universities and Colleges of Canada v Canadian Copyright Licensing Agency,
2012 FCA 22 at para 20, 428 NR 297, has established that where a breach of
procedural fairness is alleged, the Court may accept evidence to establish
those allegations:
[20] There
are a few recognized exceptions to the general rule against this Court
receiving evidence in an application for judicial review, and the list of
exceptions may not be closed. These exceptions exist only in situations where
the receipt of evidence by this Court is not inconsistent with the differing
roles of the judicial review court and the administrative decision-maker
(described in paragraphs 17-18, above). In fact, many of these exceptions tend
to facilitate or advance the role of the judicial review court without
offending the role of the administrative decision-maker. Three such exceptions
are as follows:
(a) Sometimes this
Court will receive an affidavit that provides general background in
circumstances where that information might assist it in understanding the
issues relevant to the judicial review: see, e.g., Estate of Corinne
Kelley v. Canada, 2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada
(Attorney General), 2005 FC 1013 at paragraphs 39-40; Chopra v. Canada
(Treasury Board) (1999), 168 F.T.R. 273 at paragraph 9. Care must be taken
to ensure that the affidavit does not go further and provide evidence relevant
to the merits of the matter decided by the administrative decision-maker,
invading the role of the latter as fact-finder and merits-decider. In this
case, the applicants invoke this exception for much of the Juliano affidavit.
(b) Sometimes
affidavits are necessary to bring to the attention of the judicial review court
procedural defects that cannot be found in the evidentiary record of the
administrative decision-maker, so that the judicial review court can fulfil its
role of reviewing for procedural unfairness: e.g, Keeprite Workers’ Independent
Union v. Keeprite Products Ltd. (1980) 29 O.R. (2d) 513
(C.A.). For example, if it were discovered that one of
the parties was bribing an administrative decision-maker, evidence of the bribe
could be placed before this Court in support of a bias argument.
(c) Sometimes an
affidavit is received on judicial review in order to highlight the complete
absence of evidence before the administrative decision-maker when it made a
particular finding: Keeprite, supra.
[66]
The applicant provided no satisfactory
explanation why he had not sought to address the alleged gaps in the record.
While the applicant suggested to the Court that any additional information
would have only invited cross-examination and further complicated the record,
this explanation is not satisfactory given his position that the Commission’s
decision was rendered on an incomplete record and was, therefore, procedurally
unfair.
Is the
Commission’s determination that the complaint was not timely reasonable and did
the Commission provide meaningful reasons?
[67]
The applicant submits that his complaint was
timely; he sent the complaint on January 22, 2010 and the fact that the
Commission received his complaint 19 days later is beyond his control. The
applicant also submits that the Commission unreasonably refused to excuse the
short delay. Moreover, he submits that the relevant date is not January 22,
2010 because the last discriminatory act was November 23, 2009 when the
respondent refused to reinstate him based on his medical report. Therefore,
his complaint, which was received on February 10, 2010, was in fact within the
one year time limit. The applicant relies on Hodgins, supra at
paras 47-48 and Vos, supra at para 54, to establish that an employer has
a potential duty to accommodate an employee’s disability even after termination
of employment. He submits that the Commission ignored Hodgins and Vos,
which he had highlighted in his initial position statement and in his
submissions on timeliness in response to the Report.
[68]
The applicant submits that Conroy, supra
at paras 38-42, has established that while comprehensive reasons are not
necessary, the reviewing Court must still be satisfied that the Commission had
turned its mind to a complainant’s arguments. The applicant submits that, as in
Conroy, the Commission’s decision does not convey the impression that it
considered the applicant’s argument regarding timeliness.
[69]
The applicant alternatively argues that if January 22,
2010 is the relevant date, the 19 day delay was so minimal that the Commission
should have accepted his complaint and that all the factors point to granting
him an extension.
[70]
The respondent’s position is that the Report,
which the Commission adopted as its reasons, directly addressed the applicant’s
arguments.
[71]
The respondent submits that the last possible
discriminatory act that could have been committed against the applicant as its
employee was the termination of his employment on January 22, 2009.
[72]
The respondent’s position is that the
jurisprudence relied upon by the applicant, namely Hodgins and Vos,
addresses whether an employer’s knowledge of the employee’s disability at the
time of a discriminatory act is relevant to liability or only to remedy; in
other words, whether an employer found liable for discrimination is responsible
only for losses incurred after it becomes aware of the discrimination. These
cases are not relevant to the issue of determining the last discriminatory act
for the purposes of launching the one-year statutory limitation period for
filing a complaint. Moreover, neither Hodgins nor Vos involved a
complaint filed outside the limitation period.
The Commission’s
decision regarding timeliness is reasonable
[73]
Where the Commission adopts the recommendations
of the Report and provides no additional reasons or only brief reasons, the
Court may regard the Report as constituting the Commission's reasoning for the
purpose of the screening decision (Sketchley, supra at para 37).
[74]
The Report devoted 20 paragraphs to the issue of
whether the complaint was timely. It canvassed the arguments of both parties,
as well as the factors relevant to determining whether a complaint is timely
and whether it should exercise its discretion to receive the complaint beyond
the one year deadline. The Report also outlined the chronology of the
complainant’s conduct.
[75]
The Report acknowledged that the applicant had a
post office receipt confirming that he mailed his complaint on January 22, 2010.
On the one hand, it referred to the applicant’s submissions that his complaint
raised serious issues and that the delay would not prejudice the respondent. On
the other hand, it noted that the applicant had legal counsel since April 2009,
had first contacted the Commission in December 2009 and was advised of the
deadline, and had provided no reasonable explanation for the delay.
[76]
Ultimately, the Report concluded that the
complaint was filed beyond the one year deadline and recommended that the
Commission should not exercise its discretion to deal with the complaint, since
the applicant had the benefit of legal representation throughout. These conclusions
were adopted by the Commission.
[77]
The Commission’s decision with respect to
timeliness is reasonable. It was open to the Commission to reject the
applicant’s explanation that the complaint was only three weeks late and that
he mailed it on its due date, particularly given that he had legal
representation and that he had already been given an extension to file his
complaint.
The reasons
addressed the applicant’s arguments
[78]
I agree with the applicant that the Commission’s
reasons must leave the complainant with the impression that it considered his
allegations before rejecting them. This principle was articulated by Justice
Bédard in Conroy, supra at para 41, following her consideration
of the Supreme Court of Canada’s decision in Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708:
41 One must also
bear in mind that rejecting a complaint at the pre-investigation stage is an
exception. In my view, the Commission must explain why it considers that a
complaint falls outside of its jurisdiction pursuant to section 41 of the Act.
This obligation to explain its decision must be adapted to the context of each
complaint. Although the Commission may not need to provide comprehensive
reasons, it must at least leave the complainant with the impression that it
considered his or her allegations before rejecting them. This is even more
important when certain arguments were not considered in the preparation of the
Section 40/41 Report and were only raised in response to the Report. I consider
that in these specific circumstances, the applicant, and the Court, should have
the assurance that the main arguments raised by the applicant were considered
by the Commission before it concluded that it was plain and obvious that the
complaint fell outside of its jurisdiction. Having no assurance that the
Commission turned its mind to these arguments, and considering that it is not
the Court's role to determine whether a complaint warrants an investigation, I
am of the view that the Court is not in a position to determine whether the
Commission's decision falls within the range of acceptable possible outcomes.
[79]
In the present case, the Report considered, but
rejected, the applicant’s argument that the last discriminatory act occurred on
November 23, 2009, which is the date when the respondent communicated its
refusal to reinstate his employment. The Commission noted, at paras 18-19 of
the Report:
18. The last
alleged event cited in the complaint would have occurred on January 22, 2009.
The complaint was received on February 10, 2010. The complaint is untimely.
19. The last
alleged discriminatory act is the termination of the complainant’s employment
on January 22, 2009, not the respondent’s refusal, in its letter of November
23, 2009, to reconsider its decision. The suggestion by the complainant’s
representative that the last alleged discriminatory act would have occurred on
November 23, 2009, cannot stand because the decision to terminate the
complainant’s employment was made on January 22, 2009.
[80]
Although the Report did not dwell on the
applicant’s allegation that the last discriminatory act was November 23, 2009,
it cannot be said that the Commission’s reasons left the applicant with the
impression that it did not consider his allegations before rejecting them.
[81]
Moreover, the cases referred to by the applicant
do not support his position that the respondent’s refusal to reinstate him,
when he provided a psychiatric report nine months after his termination, constituted
the last discriminatory act.
[82]
Hodgins was not
about the timeliness of a complaint. In Hodgins, the employee was
initially dismissed for extensive absences. The medical evidence established
that this conduct was due to her drug addiction. The arbitration board
canvassed the jurisprudence from various jurisdictions and concluded that the
employer’s knowledge of the employee’s disability is relevant to remedy but not
to liability. The arbitration board was prepared to find a contravention of
Ontario’s Human Rights Code based upon the employer’s refusal to
reinstate the employee after she had disclosed her drug addictions, but did not
ultimately find a contravention because accommodation would have caused the
employer undue hardship.
[83]
In Vos, the Federal Court cited Hodgins
in the context of the dismissal of a complaint pursuant to paragraph 44(3)(b)
of the Act. However, Hodgins was only briefly referenced to support the
point that the employer cannot rely on its lack of knowledge of the employee’s
disability as a defence to liability. In Vos, Justice Lemieux
quashed the Commission’s decision to dismiss the complaint pursuant to
paragraph 44(3)(b) of the Act partially because the investigator’s report never
“identifies what is the relevant time frame to fix [the employer’s] knowledge
of [the complainant]’s need for accommodation” (Vos, supra at para 54).
[84]
It is reasonable for the Commission to not
specifically refer to the decisions cited by the applicant, as these decisions
are not applicable. In Hodgins, the arbitration board was interpreting Ontario’s human rights legislation. The case dealt with whether and how the knowledge of an
employee’s disability affects the remedy awarded for an employer’s
discriminatory act. The timeliness of a complaint was not an issue. Similarly, Vos
did not concern the timeliness of a complaint; rather, the judicial review
was granted on the basis that the Commission’s decision to dismiss the
complaint, under paragraph 44(3)(b), was based on an improper investigation.
[85]
In the present case, the respondent did not have
notice of the applicant’s alleged disability until the applicant’s union
provided a copy of the August 2009 psychiatric report in November 2009, nine
months after his termination. Moreover, the respondent did not accept the
applicant’s psychiatric report as notice of a disability because it was
provided long after his termination by a doctor who had not treated him at the
time of his misconduct or his termination. The psychiatric report prompted the
arbitrator to reopen the arbitration process to consider the alleged human
rights issues. The applicant was assessed by an independent medical examiner
agreed to by the parties. Yet, the arbitrator again concluded, based on the
independent medical examination, that mental illness was not a factor in the
applicant’s time theft behaviour.
[86]
I agree with the respondent that Hodgins
and Vos do not support the proposition that a former employee may inform
his employer of a disability after dismissal when he or she so chooses, and
then, if refused reinstatement, argue that this constitutes a more recent
discriminatory act for the purpose of establishing the one year period to file
a human rights complaint.
[87]
I also note that para 45 of the Report
recommended that even if the Commission exercises its discretion to deal with
the complaint beyond the one year deadline, it should still refuse to deal with
the complaint because it is vexatious.
Is the
Commission’s determination that the complaint was vexatious reasonable?
[88]
The applicant submits that the decision that the
complaint was vexatious is unreasonable because the Commission failed to
properly apply the jurisprudence.
[89]
First, the applicant submits that, contrary to
the jurisprudence, the Commission dismissed the complaint simply because it had
been previously dealt with by the arbitrator (Boudreault, supra at
para 17; Barrette, supra at para 28; Lawrence v Canada
Post Corp, 2012 FC 692 at para 40, [2012] FCJ No 884 [Lawrence]).
[90]
Second, the applicant submits that the
Commission erred by relying on Figliola, which interpreted specific
provisions of British Columbia’s Human Rights Code, RSBC 1996, c 210 [BC
Human Rights Code] and has no application to the section 41 screening
stage.
[91]
Third, and alternatively,
the applicant submits that Figliola has been superseded by the more
recent decision of the Supreme Court of Canada in Penner, which was
decided after the Commission’s decision and which significantly changed the law
regarding issue estoppel. The applicant notes that this Court should consider
appellate authority decided subsequent to the Commission’s decision (Canada (Attorney General) v Canadian Human Rights Commission, 2013 FCA 75 at
para 18, 444 NR 120).
[92]
The applicant submits that, as a result of Penner,
the Commission’s decision that the complaint was vexatious no longer falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law, and is, therefore, unreasonable. The
applicant argues that the Commission failed to consider the fairness of the
prior arbitration proceedings, in particular, given the fact that the
arbitrator declined to allow cross-examination of the independent medical
examiner, Dr Cashman. In addition, even if the Commission did consider whether
the prior arbitration proceedings were procedurally fair, it failed to engage
in the second part of the analysis required by Penner: whether an
injustice may arise if the results of the prior arbitration proceedings were
used to preclude the applicant’s human rights complaint.
[93]
The respondent submits that the principles
established in Figliola regarding abuse of process, collateral attack
and issue estoppel apply to the Commission’s preliminary screening of a
complaint, that Figliola has not been superseded by Penner, and
that both decisions can be read together; however, the result would not be
different in the present case.
[94]
In response to the applicant’s argument that Figliola
does not apply to the Act because paragraph 27(1)(f) of the BC Human
Rights Code at issue in that case does not use the identical terms as
subsection 41(1)(d) of the Act (and in particular, the word “vexatious”), the
respondent submits that any litigation advanced despite a previous decision or
as a collateral attack or an abuse of process is inherently vexatious and that
the provisions at issue in Figliola were intended to address these
circumstances more generally.
[95]
The respondent’s position is that Figliola has
not been superseded by Penner and that the three Figliola criteria
were met: there was concurrent jurisdiction in the arbitrator; the legal issue
was essentially the same; and the complainant had the opportunity to know the
case to be met and to meet it.
[96]
The respondent acknowledges that appellate
authority decided after the Commission’s decision, such as Penner, could
apply. However, even if the Commission’s decision should be reviewed in light
of Penner, the decision would not be unreasonable; the prior arbitration
proceedings were not procedurally unfair and relying on their result was not
unfair.
[97]
The respondent also submits that the Commission
properly applied Boudreault and Barrette, since Boudreault,
as refined by Barrette, does not require that the Commission review all
the evidence submitted to the first tribunal in order to properly decline to
exercise its jurisdiction.
The
Commission’s decision that the complaint was vexatious is reasonable
The Commission examined the previous decision
[98]
In deciding whether a complaint which has
already been adjudicated would attract the operation of paragraph 41(1)(d) of
the Act, the Commission must consider the grounds alleged and ascertain their
validity. The Commission cannot simply rely on the fact that there has been a
previous decision to refuse to consider a complaint under paragraph 41(1)(d) of
the Act.
[99]
In Barrette, supra at para 28,
the Court of Appeal held:
28 Clearly, in my view, the Commission must turn its mind to the
decision of the arbitrator, not to determine whether it is binding on the
Commission, but to examine whether, in light of that decision and of the
findings of fact and credibility made by the arbitrator, the complaint may not
be such as to attract the application of paragraph 41(1)(d).
[100]
In Boudreault, supra at paras
14-17, Justice Tremblay-Lamer unqualifiedly concluded that if a claimant has
taken advantage of the available internal remedies, the Commission may not
refuse to exercise its jurisdiction on the ground that the matter has already
been decided.
[101]
However, in Lawrence, supra at
paras 40-41, Justice Scott considered Boudreault and reaffirmed the more
moderate view articulated in Barrette:
40 In Boudreault
v Canada (Attorney General) (1995), 99 FTR 293, [1995] F.C.J. No. 1055,
Justice Tremblay-Lamer relied on Burke v Canada (Canadian Human Rights
Commission) (1987), 125 NR 239 (FCA) and Pitawanakwat v Canada (Human
Rights Commission) (1987), 125 NR 237 (FCA) to affirm that if an applicant
"has taken advantage of the available internal remedies, the Commission
may not refuse to exercise its jurisdiction on the ground that the matter has
already been decided".
41 In the Court's
opinion, after a thorough review of the documents filed, it is apparent in the
present case that, when the CHRC declined to exercise its discretion, it did
not merely rely on a previous decision but carefully analysed the settlement
agreement.
[102]
In the present case, the Commission specifically
referred to Boudreault and Barrette in the 41 Report and examined
whether the “complaint may not be such as to attract the application of
paragraph 41(1)(d)” before deciding not to deal with the complaint. The
Commission also made several observations about the prior arbitration
proceedings. It noted that the applicant “had legal representation to assist
the union in presenting his case at arbitration” and that he “did raise the
issue of disability before the arbitrator, he did not raise the issues of race
or national and ethnic origin; however, there is no indication that he was
prevented from doing so”. It also noted that “another decision-maker, namely a
labour arbitrator, has considered the reasons for which the complainant’s
employment was terminated” and that “[j]udicial review of the arbitrator’s
decision was not sought”.
Figliola is applicable to the section 40/41 preliminary screening
stage
[103]
The Report noted that the principles set out in Figliola
applied to human rights commissions and set out factors to be considered in
determining whether a complaint is vexatious, which reflect those principles.
The Report also acknowledged that the Supreme Court of Canada found that in
some circumstances justice may demand fresh litigation.
[104]
In Figliola, the Supreme Court set out
principles governing how one statutory administrative tribunal should exercise
its discretion to dismiss a human rights complaint already dealt with by
another statutory administrative tribunal. While Figliola dealt with the
interpretation of paragraph 27(1)(f) of the BC Human Rights Code, which
does not contain the phrase “vexatious grounds”, the Supreme Court’s decision
provides general principles concerning the prevention of “abuse of the
decision-making process” and therefore, could apply more broadly to the
decisions of the Commission taken pursuant to paragraph 41(1)(d) of the Act.
The phrase “vexatious grounds” in paragraph 41(1)(d) of the Act is, like
paragraph 27(1)(f) of the BC Human Rights Code, an amalgamation
of principles underlying the common law finality doctrines of res judicata,
issue estoppel, collateral attack, and abuse of process.
[105]
The Commission did not err in relying on Figliola.
Paragraph 41(1)(d) of the Act provides that “…the
Commission shall deal with any complaint filed with it unless in respect
of that complaint it appears to the Commission that (d) the complaint is
trivial, frivolous, vexatious or made in bad faith…” [Emphasis added]. Figliola addressed
the legal doctrines which could result in a complaint being found to be
vexatious.
[106]
Moreover, the Federal Court of Appeal held that Figliola
applies to the Canadian Human Rights Tribunal [“CHRT”] in exercising its
discretion to decline to hear a complaint already dealt with by another
tribunal. The Court of Appeal noted that in Figliola, the Supreme Court
found that paragraph 27(1)(f) of the BC Human Rights Code reflects the
common law finality doctrines of issue estoppel, abuse of process and
collateral attack, and therefore, the Court’s comments in Figliola are
relevant to the application of these common law principles by the CHRT (Canada
(Canadian Human Rights Commission) v Canada (Canadian Transportation Agency),
2011 FCA 332 at para 24, 37 Admin LR (5th) 180). The same would apply to the
exercise of discretion by the Commission pursuant to paragraph 41(1)(d).
[107]
Figliola, therefore,
continues to provide guidance at the screening stage to determine whether
the application of issue estoppel or other common law doctrines of finality
would work an injustice and whether a complaint is vexatious.
[108]
Figliola is a five
to four decision where both the majority and the minority found the British
Columbia Human Rights Tribunal’s decision to refuse to hear a complaint to be
unreasonable. The majority focussed on whether the substance of the complaint
has been appropriately dealt with and canvassed the relevant principles,
at paras 34-37:
[34] At their
heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse
of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their
common underlying principles can be summarized as follows:
• It is in the
interests of the public and the parties that the finality of a decision can be
relied on (Danyluk, at para. 18; Boucher, at para. 35).
• Respect
for the finality of a judicial or administrative decision increases fairness
and the integrity of the courts, administrative tribunals and the
administration of justice; on the other hand, relitigation of issues that have
been previously decided in an appropriate forum may undermine confidence in
this fairness and integrity by creating inconsistent results and unnecessarily
duplicative proceedings (Toronto (City), at paras. 38 and 51).
• The method
of challenging the validity or correctness of a judicial or administrative
decision should be through the appeal or judicial review mechanisms that are
intended by the legislature (Boucher, at para. 35; Danyluk, at
para. 74).
• Parties
should not circumvent the appropriate review mechanism by using other forums to
challenge a judicial or administrative decision (TeleZone, at
para. 61; Boucher, at para. 35; Garland, at para. 72).
• Avoiding
unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51).
[35] These
are the principles which underlie s. 27(1)(f). Singly and together, they
are a rebuke to the theory that access to justice means serial access to
multiple forums, or that more adjudication necessarily means more justice.
[36] Read as a whole,
s. 27(1)(f) does not codify the actual doctrines or their technical
explications, it embraces their underlying principles in pursuit of finality,
fairness, and the integrity of the justice system by preventing unnecessary
inconsistency, multiplicity and delay. That means the Tribunal should be
guided less by precise doctrinal catechisms and more by the goals of the
fairness of finality in decision-making and the avoidance of the relitigation
of issues already decided by a decision-maker with the authority to resolve
them. Justice is enhanced by protecting the expectation that parties will
not be subjected to the relitigation in a different forum of matters they
thought had been conclusively resolved. Forum shopping for a different
and better result can be dressed up in many attractive adjectives, but fairness
is not among them.
[37] Relying on these underlying
principles leads to the Tribunal asking itself whether there was concurrent
jurisdiction to decide human rights issues; whether the previously decided
legal issue was essentially the same as what is being complained of to the
Tribunal; and whether there was an opportunity for the complainants or their
privies to know the case to be met and have the chance to meet it, regardless
of how closely the previous process procedurally mirrored the one the Tribunal
prefers or uses itself. All of these questions go to determining whether the
substance of a complaint has been “appropriately dealt with”. At the end of
the day, it is really a question of whether it makes sense to expend public and
private resources on the relitigation of what is essentially the same dispute.
[109]
In this case, the test set out in Figliola,
supra at para 37, was met. The applicant already alleged
disability-based discrimination in contesting his dismissal before the
arbitrator in January 2012, in which he was represented by his union and legal
counsel. The arbitrator expressly addressed the human rights aspect of the
grievance, i.e., the alleged mental disability; in fact, the arbitrator
specifically mentioned that human rights considerations prompted him to reconsider
the applicant’s grievance due to his allegations of mental illness. As the
Commission noted, the applicant could have raised his race and ethnic
discrimination complaints at either the 2009 or 2012 arbitration proceedings,
or even earlier during his disciplinary proceedings, but did not do so. The
applicant knew the case he had to meet at his arbitration and participated in
that process. The arbitrator considered the applicant’s new medical evidence in
2012 and concluded that it “undermines any contention that the grievor’s Human
Rights have been infringed”.
[110]
The analysis then turns to the reasonableness of
the Commission’s determination that the complaint was vexatious in the event
that the principles set out in Penner regarding issue estoppel should be
applied.
The Commission’s decision is reasonable in light of Penner
[111]
The more recent Supreme Court decision in Penner
does not change the outcome nor does it oust the application of Figliola
to decisions of human rights commissions.
[112] Penner explored the approach to be taken
by courts in determining when issue estoppel should operate where there has
been a prior administrative proceeding. Penner is a four to three
decision; the majority found that issue estoppel should not apply and allowed
the appeal while the minority would have applied issue estoppel and dismissed
the appeal.
[113]
In Penner, supra at paras 28-31,
the majority canvassed the legal framework governing issue estoppel:
[28] Relitigation
of an issue wastes resources, makes it risky for parties to rely on the results
of their prior litigation, unfairly exposes parties to additional costs, raises
the spectre of inconsistent adjudicative determinations and, where the initial
decision maker is in the administrative law field, may undermine the
legislature’s intent in setting up the administrative scheme. For these
reasons, the law has adopted a number of doctrines to limit relitigation.
[29] The one
relevant on this appeal is the doctrine of issue estoppel. It balances
judicial finality and economy and other considerations of fairness to the
parties. It holds that a party may not relitigate an issue that
was finally decided in prior judicial proceedings between the same parties or
those who stand in their place. However, even if these elements are
present, the court retains discretion to not apply issue estoppel when its
application would work an injustice.
[30] The
principle underpinning this discretion is that “[a] judicial doctrine developed
to serve the ends of justice should not be applied mechanically to work an
injustice”: Danyluk, at para. 1; see also Toronto (City)
v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at paras. 52-53.
[31] Issue
estoppel, with its residual discretion, applies to administrative tribunal
decisions. The legal framework governing the exercise of this discretion
is set out in Danyluk. In our view, this framework has not been
overtaken by this Court’s subsequent jurisprudence. The discretion
requires the courts to take into account the range and diversity of structures,
mandates and procedures of administrative decision makers however, the
discretion must not be exercised so as to, in effect, sanction collateral
attack, or to undermine the integrity of the administrative scheme. As
highlighted in this Court’s jurisprudence, particularly since Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, legislation establishing
administrative tribunals reflects the policy choices of the legislators and
administrative decision making must be treated with respect by the
courts. However, as this Court said in Danyluk, at para. 67:
“The objective is to ensure that the operation of issue estoppel
promotes the orderly administration of justice but not at the cost of real
injustice in the particular case.”
[114] At paras 39-42, the majority held that unfairness may arise in two
ways:
[39] Broadly
speaking, the factors identified in the jurisprudence illustrate that
unfairness may arise in two main ways which overlap and are not mutually
exclusive. First, the unfairness of applying issue estoppel may arise
from the unfairness of the prior proceedings. Second, even where the
prior proceedings were conducted fairly and properly having regard to their
purposes, it may nonetheless be unfair to use the results of that process to preclude
the subsequent claim.
(a)
Fairness of the Prior Proceedings
[40] If the
prior proceedings were unfair to a party, it will likely compound the
unfairness to hold that party to its results for the purposes of a subsequent
proceeding. For example, in Danyluk, the prior administrative
decision resulted from a process in which Ms. Danyluk had not received notice
of the other party’s allegations or been given a chance to respond to them.
[41] Many of the
factors identified in the jurisprudence, including the procedural safeguards,
the availability of an appeal, and the expertise of the decision maker, speak
to the opportunity to participate in and the fairness of the administrative
proceeding. These considerations are important because they address the
question of whether there was a fair opportunity for the parties to put forward
their position, a fair opportunity to adjudicate the issues in the prior
proceedings and a means to have the decision reviewed. If there was not,
it may well be unfair to hold the parties to the results of that adjudication
for the purposes of different proceedings.
(b) The Fairness of Using the Results of the Prior Proceedings to Bar
Subsequent Proceedings
[42] The
second way in which the operation of issue estoppel may be unfair is not so
much concerned with the fairness of the prior proceedings but with the fairness
of using their results to preclude the subsequent proceedings.
Fairness, in this second sense, is a much more nuanced enquiry. On the
one hand, a party is expected to raise all appropriate issues and is not
permitted multiple opportunities to obtain a favourable judicial
determination. Finality is important both to the parties and to the
judicial system. However, even if the prior proceeding was conducted
fairly and properly having regard to its purpose, injustice may arise from
using the results to preclude the subsequent proceedings. This may occur,
for example, where there is a significant difference between the purposes,
processes or stakes involved in the two proceedings. We recognize that
there will always be differences in purpose, process and stakes between
administrative and court proceedings. In order to establish unfairness in
the second sense we have described, such differences must be significant and
assessed in light of this Court’s recognition that finality is an objective
that is also important in the administrative law context. As Doherty and
Feldman JJ.A. wrote in Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at para. 39, if courts routinely declined to apply issue estoppel because the
procedural protections in the administrative proceedings do not match those
available in the courts, issue estoppel would become the exception rather than
the rule. [italics in original.]
[115]
While the dissenting judges in Penner
suggest that the majority departed from Figliola, the majority did not
specifically refer to Figliola. However, the majority commented, at para
31, that the legal framework established in Danyluk v Ainsworth Technologies
Inc, 2001 SCC 44, [2001] 2 S.C.R. 460 [Danyluk], which governs
the exercise of the court’s discretion to suspend the application of issue
estoppel, has not been overtaken by “subsequent jurisprudence”, which would
include Figliola.
[116]
The dissenting judges in
Penner were of the view that Figliola moved away from the
approach to issue estoppel articulated in Danyluk, which had held that a
wider discretion to relieve against the application of issue estoppel applied
to administrative tribunals than to courts. The dissent held that Figliola
remains the proper approach for both administrative tribunals and the courts
when considering whether issue estoppel applied due to a prior decision of an
administrative decision-maker. The dissent is critical of the majority for
returning to the Danyluk approach and further expanding the
consideration of the fairness of the previous decision.
[117]
It is important to distinguish the factual
differences between Penner and Figliola. Penner dealt with
the application of the specific common law doctrine of issue estoppel by a
court, in light of a decision of a prior administrative decision-maker. In
contrast, Figliola involved an administrative decision-maker applying a
statutory provision that incorporated the principles underlying the common law
doctrines of finality, including res judicata, abuse of process,
collateral attack and issue estoppel.
[118]
I note that the majority in Figliola
indicated that it was not clear whether the Danyluk factors were
applicable to the facts in Figliola. The majority distinguished Danyluk
on the basis that it intended to assist the courts in applying issue
estoppel. The majority found that paragraph 27(1)(f) of the BC Human
Rights Code was not limited to issue estoppel, but called for an approach
that applied the combined principles underlying various common law doctrines of
finality (Figliola, supra at para 44).
[119]
As mentioned above, like the relevant provisions
of the BC Human Rights Code considered by the Supreme Court in Figliola,
paragraph 41(1)(d) of the Act is also not limited to issue estoppel; the notion
of a vexatious complaint would include complaints that are res judicata,
abuse of process, collateral attacks or barred by issue estoppel. The
Commission’s determination that the applicant’s complaint was vexatious
pursuant to paragraph 41(1)(d) of the Act was based on the fact that the
complaint had “already been appropriately dealt with” and that, as noted in the
Report, “[t]o allow the complainant to raise new
grounds of discrimination before the Commission when he could have had all of
his human rights issues dealt with at arbitration would be tantamount to an
abuse of process and as such should be considered vexatious.”
[120]
The Commission did not refer to issue estoppel
as the basis for finding that the complaint was vexatious; rather it is clear
that it looked at the guidance provided in Figliola, which embraced the
range of principles reflected by common law doctrines of finality.
[121]
I am of the view that Figliola guides the
Commission's determination of vexatiousness.
[122]
However, if Penner should also apply
because issue estoppel could have been the underlying reason for the
Commission’s determination that the complaint was vexatious, rather than the
broader finality considerations underlying paragraph 41(1)(d) of the Act, which
in my view were considered by the Commission, the application of Penner
would not lead to a different result. The Commission’s decision to dismiss the
complaint would be reasonable even if Penner were applied.
[123]
If Penner were applied, the Commission
would have been required to conduct a broader inquiry into the previous
decision before concluding that the complaint was vexatious. It would have
first considered the fairness of the arbitration proceedings. It would have
then considered the fairness of using the result of the arbitration proceedings
to bar the complaint.
[124]
In my view, there was no unfairness in the
arbitration proceedings. The applicant was represented by his union and legal
counsel. He had the opportunity to participate, to provide documents and to
make submissions. There was a process to review the arbitrator’s decision,
including whether that process had been conducted in accordance with procedural
fairness; but the applicant did not seek judicial review.
[125]
With respect to the applicant’s submission that
he was denied procedural fairness by the arbitrator’s refusal to permit him to
cross-examine Dr Cashman, the independent medical examiner, I agree with the
respondent that to permit such cross-examination would have allowed the
applicant to impugn his own witness and would defeat the purpose of an
independent medical examination. The applicant had agreed to submit to the
examination and he had agreed to the choice of Dr Cashman.
[126]
In addition, in my view, there was no unfairness
in relying on the results of the arbitration process to conclude that the
complaint was vexatious. There were no significant differences between the
purposes, processes or stakes involved in the two proceedings, particularly for
this applicant. As the respondent correctly submits, federal labour arbitrators
are given the power to interpret, apply, and give remedies in accordance with
the Act, and conversely, the Commission may refuse to deal with a complaint if
the claimant ought to exhaust grievance procedures. In this case, the
applicant sought to be reinstated by the respondent. Although the Commission
could have also addressed systemic discrimination issues, the applicant made
only vague and bald assertions of systemic discrimination. Therefore, both the
arbitration process and the human rights complaint process could have addressed
the applicant’s employment status, as well as any resulting damages arising
from his termination. And, as noted repeatedly, the applicant had not raised
any allegations of racial or ethnic discrimination until after his termination
and the arbitration process had first concluded.
[127] Notably, the sole reason for reopening the arbitration process and
the January 2012 hearing was to give the applicant an opportunity to advance
his human rights arguments, in light of new independent medical evidence. Penner, supra at para 42, emphasizes
that a party is expected to raise all appropriate issues and is not permitted
multiple opportunities to obtain a favourable judicial determination.
[128]
The Commission considered whether a finding of
vexatiousness would result in an injustice and reasonably concluded that it did
not.
[129]
Whether the principles of Figliola are
the benchmark for such findings or whether the principles of Penner, which
call for a broader two step inquiry into fairness of the previous proceedings,
should be the benchmark for exercising the discretion to relieve against issue
estoppel, or to relieve against a finding of vexatiousness, the unfairness and
injustice must be real; mere allegations of unfairness and injustice are not
sufficient.
[130]
In this case, the applicant has not demonstrated
how reliance on the finality of the arbitration proceedings has caused
unfairness or injustice.
[131]
The majority judgments in Figliola and Penner
both placed a heavy emphasis on the need for finality. As noted in Figliola,
supra at para 35, the finality principles are a “rebuke to the theory
that access to justice means serial access to
multiple forums, or that more adjudication necessarily means more justice”. In Penner,
supra at para 42, the majority remarked that “a party is expected to raise all appropriate issues and is not
permitted multiple opportunities to obtain a favourable judicial
determination. Finality is important both to the parties and to the
judicial system”.
[132]
The application for judicial review is dismissed.
[133]
As agreed to by the parties, costs shall be awarded
to the respondent in the amount of $3,000.
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