Docket: T-2038-14
Citation:
2015 FC 1423
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 29, 2015
PRESENT: The Honourable Mr. Justice Gascon
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BETWEEN:
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GANDHI JEAN
PIERRE
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Applicant
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and
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CITIZENSHIP AND
IMMIGRATION
CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Gandhi Jean Pierre, is an
immigration officer for Citizenship and Immigration Canada [CIC]. In May 2013, he
sent a letter to the Human Rights Commission [Commission] advising it that he
was going to file a discrimination complaint against his employer. Mr. Jean Pierre
alleges that he was discriminated against between June 2005 and May 2012.
In particular, he claims to have suffered discrimination in 2009, then between
November 2010 and October 2011 during a selection process for the position of
pre-removal risk assessment officer [PRRA] at CIC. In May 2012, Mr. Jean Pierre
obtained some documents following an access to information request. Those
documents, in his view, show that libellous, defamatory and discriminatory
comments made by his employer undermined his chance to be hired into a new
position at another federal government agency.
[2]
In August 2014, after analyzing and considering
the representations of Mr. Jean Pierre and CIC, the Commission decided
to not deal with Mr. Jean Pierre’s complaint pursuant to paragraph 41(1)(e)
of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA]. In the
Commission’s view, Mr. Jean Pierre filed his complaint with the
Commission after the expiration of the one-year period following the last act
on which the complaint was based.
[3]
Today, Mr. Jean Pierre is requesting
judicial review of that decision by the Commission refusing to deal with his
complaint. He argues that the decision breached the rules of procedural fairness
and was unreasonable. He is seeking an order from this Court setting aside the
Commission’s decision and remitting the matter to a different decision-maker at
the Commission for redetermination.
[4]
The issues are as follows:
- What are the appropriate standards of review?
- Did the Commission breach the duty of fairness it owed to Mr. Jean Pierre
and its duty to comply with the rules of procedural fairness in examining
his complaint?
- Was the Commission’s decision to not deal with Mr. Jean Pierre’s
complaint unreasonable?
[5]
For the following reasons, Mr. Jean Pierre’s
application for judicial review must fail because the Court has concluded that
the Commission did not breach any rule of procedural fairness in the conduct of
this case and that its decision to not deal with Mr. Jean Pierre’s complaint
was not unreasonable and was a possible, acceptable outcome in the
circumstances.
II.
Background
A.
Facts
[6]
Mr. Jean Pierre is an immigration
officer who has been working at CIC since September 1998. Other than this immigration
officer position, Mr. Jean Pierre also held
the position of acting PRRA officer in the PRRA division of CIC from November
2010 to the end of October 2011.
[7]
On May 23, 2013, Mr. Jean Pierre sent
a letter to the Commission stating that he was going to file a discrimination
complaint against his employer. In that letter, Mr. Jean Pierre undertook
to submit his evidence within 10 days. On June 7, 2013, the Commission sent Mr. Jean Pierre
an information kit and a form to complete to formally file his complaint. The
Commission requested that the complaint be filed by July 8, 2013. On that date,
Mr. Jean Pierre did indeed send the Commission the completed
complaint kit and a letter dated July 5, 2013.
[8]
In the complaint form and his letter of July 5, Mr. Jean Pierre
alleged that he had been discriminated against between June 2005 and May 25,
2012. In particular, he claimed that he had suffered discrimination in 2009 after
failing a selection process for a PRRA officer position. In November 2009, a
notice of interest for a supervisor’s position was sent to all employees except
him. He says that he was promoted to a PRRA officer position in October 2010
but was demoted after a year as a result of discriminatory actions by his CIC
superiors at the time, Mses. Giroux and Clément. These actions took place from
November 2010 to October 2011. In October 2011, Mr. Jean Pierre informed
Mses. Giroux and Clément’s manager of the impact of their actions on his
health. In January 2012, Mr. Jean Pierre was eliminated at the last stage
of a selection process for a hearing officer position to meet the possible
needs of the Enforcement Division of the Canada Border Services Agency [CBSA]. On May 25, 2012, he received some
documents following an access to information request to the CBSA. Those
documents, in his view, show that libellous, discriminatory comments were made
about him by his superiors at CIC and undermined his chance to be hired into a
new position at the CBSA.
[9]
On August 15, 2013, the Commission informed Mr. Jean Pierre
that it had reviewed his complaint and believed that paragraphs 41(1)(a),
(d) and (e) of the CHRA could apply. The Commission told Mr. Jean Pierre
that there would be a report with respect to these issues and that he could
provide representations in this regard. On September 24, 2013, Mr. Jean Pierre
sent his position statement on the relevant paragraphs of the CHRA to the
investigator assigned by the Commission. With respect to paragraph 41(1)(e), Mr. Jean Pierre
indicated that he had complied with the time limit because he became aware of
the last discriminatory practice on May 25, 2012, when he received
documents following his access to information request to the CBSA. He adds that
he suffered two severe depressions, which totalled three months of medical incapacity.
On October 29, 2013, CIC communicated its position on the relevant paragraphs
of the CHRA. CIC maintained that Mr. Jean Pierre had already filed a
number of grievances for similar reasons to those alleged in his new complaint
and that Mr. Jean Pierre’s complaint to the Commission was filed
after the one-year statutory time limit had expired.
[10]
In a report dated February 12, 2014, the
Commission’s investigator, Caroline Audet, citing paragraph 41(1)(e) of
the CHRA, recommended that the Commission not deal with Mr. Jean Pierre’s
compaint because it involved acts that occurred more than one year before the
complaint was filed and Mr. Jean Pierre did not provide a reasonable
explanation for the late filing. Ms. Audet’s report was sent to the
parties on February 17, 2014, and they were invited to provide submissions not
exceeding 10 pages.
[11]
On March 17, 2014, Mr. Jean Pierre sent
submissions totalling 38 pages to the Commission. On April 15, 2014, the
Commission advised Mr. Jean Pierre that it could not accept his submissions
because they exceeded the prescribed 10-page limit. Mr. Jean Pierre asked
to be exempted from the 10-page limit, but the Commission refused. On June 9,
2014, Mr. Jean Pierre provided his 10-page submissions responding to
the Feb. 12 investigation report. He argued, among other things, that he had
filed his complaint within the one-year time limit, that Ms. Audet’s
decision was unreasonable and that she had fettered her discretion by not
verifying the attenuating circumstances. For its part, CIC sent its submissions
to the investigator in July 2014.
[12]
On August 29, 2014, the Commission decided under
paragraph 41(1)(e) of the CHRA to not deal with Mr. Jean Pierre’s
complaint because it was filed after the expiration of the one-year time limit prescribed
by the Act.
B.
The Commission’s decision
[13]
The letter informing Mr. Jean Pierre of
the Commission’s decision states that, after reviewing the investigation report
and all the submissions sent subsequently, the Commission decided to not deal
with the complaint. The record of the decision gives as a reason that the
complaint was filed more than one year after the last discriminatory practice
on which it was based. The Commission determined that it would not deal with
the complaint because Mr. Jean Pierre did not do everything that a
reasonable person would do in the circumstances to proceed with the complaint. The
Commission also noted that, although Mr. Jean Pierre’s health may
have played a role in his ability to pursue the complaint, there was not enough
evidence indicating that his health prevented him from proceeding with the
complaint.
[14]
The Commission’s decision was based essentially
on Ms. Audet’s recommendation of February 12, 2014. In her report, Ms. Audet
was of the opinion that the last discriminatory practice underlying Mr. Jean Pierre’s
complaint had occurred in October 2011 and that therefore Mr. Jean Pierre
should have filed his complaint by October 2012. The investigator stated that Mr. Jean Pierre
should have known prior to receiving the access to information documents on May
25, 2012, that he may have been subjected to discriminatory practices. In fact,
Ms. Audet noted in her report, it is clear that Mr. Jean Pierre knew
that there were problems at his work because he had already filed a number of
complaints and recourses with other administrative agencies and courts in
respect of the episodes of discrimination that he claims to have suffered. Some
of these complaints referred, inter alia, to the actions of his
superiors at CIC, Mses. Giroux and Clément.
[15]
Moreover, Ms. Audet determined that the
letter of May 23, 2012, sent by Mr. Jean Pierre was not in itself a
complaint. The complaint in an acceptable format for the Commission was not
received until July 9, 2013. Mr. Jean Pierre did not give any reason
other than his fear of reprisals by his employer for not contacting the
Commission prior to May 2013. Ms. Audet did not consider Mr. Jean Pierre’s
reasons sufficient to explain the late filing of the complaint.
[16]
According to the information that Mr. Jean Pierre
and CIC provided to the investigator and that Ms. Audet noted in her
February 2014 report, Mr. Jean Pierre filed the first complaint in
June 2009 with the Public Service Staffing Tribunal [PSST] regarding
allegations of fraud, abuse and discrimination that he experienced when working
at CIC. That complaint was resolved through mediation. In December 2009, Mr. Jean Pierre
also filed a grievance dealing with the rejection of his application in a
selection process. That grievance remains outstanding. In March 2010, Mr. Jean Pierre
filed a complaint against his union representative with the Public Service
Labour Relations Board [PSLRB]. That complaint was dismissed in February 2012.
[17]
In his complaints, Mr. Jean Pierre mentioned,
inter alia, that between November 2010 and October 2011, Mses. Giroux and
Clément (who were, respectively, his manager and his supervisor at CIC) had
discriminated against him when he was acting as a PRRA officer. In fact, in October
2011, he informed their manager of the impact of this behaviour on his health.
In January 2012, Mr. Jean Pierre also filed an unfair labour practice
complaint with the PSLRB against Mses. Giroux and Clément and his employer.
This complaint was finally dismissed in May 2015. Moreover, Mr. Jean Pierre
filed another complaint with the PSST regarding the employment opportunity that
he applied for with another federal agency, i.e. the CBSA. The PSST dismissed
this complaint in August 2013, and the Federal Court upheld the decision in
April 2015 in Gandhi v Canada (Border Services Agency), 2015 FC 436 [Gandhi],
including the arguments that Mses. Giroux and Clément and the assessment board discriminated
against Mr. Jean Pierre and deprived him of an employment opportunity
at the CBSA.
[18]
In his submissions of September 24, 2013, sent
to the Commission, Mr. Jean Pierre also stated that he had suffered
two severre depressions, which totalled three months of incapacity without,
however, specifying the period of time. In her report of February 12, 2014, Ms. Audet
in fact referred to Mr. Jean Pierre’s statements that his work
situation was causing health problems for him. In its decision of August 29,
2014, the Commission also noted Mr. Jean Pierre’s health but found
that there was not enough evidence to conclude that this prevented Mr. Jean Pierre
from proceeding with his complaint before the Commission.
C.
Relevant provisions
[19]
The relevant statutory provisions are found at
section 41 of the CHRA and read as follows:
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Commission to deal with complaint
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Irrecevabilité
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41. (1) Subject to section 40, the Commission shall deal with any
complaint filed with it unless in respect of that complaint it appears to the
Commission that
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41. (1) Sous réserve de l’article 40, la Commission statue sur
toute plainte dont elle est saisie à moins qu’elle estime celle-ci
irrecevable pour un des motifs suivants:
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(a) the alleged victim of the discriminatory practice to which the
complaint relates ought to exhaust grievance or review procedures otherwise
reasonably available;
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a) la victime présumée de l’acte discriminatoire devrait épuiser
d’abord les recours internes ou les procédures d’appel ou de règlement des
griefs qui lui sont normalement ouverts;
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(b) the complaint is one that could more
appropriately be dealt with, initially or completely, according to a
procedure provided for under an Act of Parliament other than this Act;
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b) la plainte pourrait avantageusement
être instruite, dans un premier temps ou à toutes les étapes, selon des
procédures prévues par une autre loi fédérale;
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(c) the complaint is beyond the jurisdiction of the Commission;
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c) la plainte n’est pas de sa compétence;
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(d) the complaint is trivial, frivolous, vexatious or made in bad
faith; or
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d) la plainte est frivole, vexatoire ou entachée de mauvaise foi;
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(e) the complaint is based on acts or omissions the last of which
occurred more than one year, or such longer period of time as the Commission
considers appropriate in the circumstances, before receipt of the complaint.
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e) la plainte a été déposée après l’expiration d’un délai d’un an
après le dernier des faits sur lesquels elle est fondée, ou de tout délai
supérieur que la Commission estime indiqué dans les circonstances.
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D.
Standard of review
[20]
Mr. Jean Pierre submits that the
questions of procedural safeguards do not require deference on the part of the
Court. Similarly, he adds that the question dealing with the fairness of the
interpretation of paragraph 41(1)(e) of the CHRA also falls within the
correctness standard because of the quasi-constitutional nature of this
question (Canada (Attorney General) v Johnstone, 2014 FCA 110 [Johnstone]
at para 37 and 45-52). In the alternative, Mr. Jean Pierre argues
that the Commission’s decision was unreasonable because it is not consistent
with a large and liberal interpretation that furthers the purpose of the CHRA and
it does not adhere to the rule of law (Johnstone at para 61-63; Public
Mobile Inc v Canada (Attorney General), 2011 FC 130 at para 62 and 64).
[21]
On behalf of the respondent Minister, the
Attorney General of Canada [AGC] agrees in part with Mr. Jean Pierre’s
opinion and also submits that questions involving the fairness of the procedure
adopted by the Commission in deciding whether to deal with complaints under subsection 41(1)
of the CHRA are to be reviewed on a standard of correctness (Panula v Canada
(Attorney Gemeral), 2014 CanLII 13154 [Panula] at para 17; Boshra
v Canada (Attorney General), 2011 FC 1128 [Boshra] at para 47; Khapar
v Air Canada, 2014 FC 138 [Khapar] at para 45). The AGC submits,
however, that the reasonableness standard applies to decisions by the
Commission to not deal with complaints under subsection 41(1) of the CHRA and
to its findings of fact (Panula at para 16; Boshra at para 45; Khapar
at para 46).
[22]
The Court agrees with the AGC’s opinion on the
standard of review that governs the interpretation and application of paragraph 41(1)(e)
of the CHRA. The interpretation of this provision is, indeed, within the
Commission’s experise, and the Court has, incidentally, recognized on multiple
occasions that, in this regard, the Commission is therefore subject to the
reasonableness standard of review (Khapar at para 46; Panula at
para 16; Boshra at para 45).
[23]
In Alberta (Information and Privacy
Commissioner) v Alberta Teachers Association, 2011 SCC 61 [Alberta
Teachers] at para 30-34, the Supreme Court confirmed that “[d]eference will usually result where a tribunal is
interpreting its own statute or statutes closely connected to its function,
with which it will have particular familiarity” (at para 30; Dunsmuir
v New Brunswick, 2008 SCC 9 [Dunsmuir] at para 54; Canada (Human
Rights Commission) v Canada (Attorney General), [2011] SCC 53 at para 18). In
that case, the Court concluded that a timelines question is not a
constitutional question; nor is it a question regarding the jurisdictional
lines between two or more competing specialized tribunals (Alberta Teachers
at para 33). A timelines question is specific to the tribunal’s administrative
scheme and engages considerations and gives rise to consequences that fall squarely
within the tribunal’s specialized expertise.
[24]
In this case, the time limit mentioned in paragraph 41(1)(e)
of the CHRA relates to the Commission’s investigation process, which its
commissioners have extensive knowledge of. In the Court’s view, there is no
doubt that these considerations fall under the Commission’s expertise, which is
focused on balancing the rights of parties, and that therefore they mandate the
reasonableness standard.
[25]
In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes that are
defensible in respect of the facts and law. The reasons of a decision are
considered reasonable if they “allow the reviewing
court to understand why the tribunal made its decision and permit it to
determine whether the conclusion is within the range of acceptable outcomes”
(Dunsmuir at para 47; Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at para 16). In this context, the Court must
show respect for and deference to an administrative tribunal’s decision and cannot
substitute its own reasons. It may however, if necessary, look to the record
for the purpose of assessing the reasonableness of the decision (Newfoundland
Nurses at para 15).
[26]
With respect to questions of procedural
fairness, it is well established that the appropriate standard of review is
correctness (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). The Court
agrees with Mr. Jean Pierre on this point. The question is not really
whether the decision was correct but whether the process followed by the
decision-maker was ultimately fair (Majdalani v Canada (Minister of
Citizenship and Immigration), 2015 FC 294 at para 15; Krishnamoorthy v
Canada (Minister of Citizenship and Immigration), 2011 FC 1342 at para 13).
E.
Preliminary issues
[27]
The AGC raises two preliminary issues.
[28]
First, in accordance with rule 303(1)(a) of the Federal
Courts Rules, SOR/98-106 [Rules], the respondent on an application for
judicial review should be the person directly affected by the order sought,
other than a tribunal. In this case, the AGC submits that the respondent should
therefore be Her Majesty the Queen in Right of Canada (through the AGC) as the
representative of the Minister of Citizenship and Immigration. The AGC is also requesting
that the style of cause be amended accordingly.
[29]
The Court concurs with the AGC on the issue of
the parties to the dispute. Based on rule 303(1)(a), the respondent
directly affected by the order sought is Mr. Jean Pierre’s employer. Because
the Department of Citizenship and Immigration appears in Schedule I to the Financial
Administration Act, RSC 1985, c F-11, it should be represented by Her
Majesty the Queen in Right of Canada under subsection 2(1) of the Public
Service Labour Relations Act, SC 2003, c 22 in this case. The style of
cause will therefore be amended accordingly.
[30]
Second, the AGC submits that a number of facts
mentioned in Mr. Jean Pierre’s affidavit, as well as exhibits to his
affidavit, were not presented to the Commission and therefore were not part of
the tribunal record. Accordingly, the Court should not consider these exhibits on
this judicial review. Specifically, the AGC opposes the filing of exhibits CF-2,
CF-3, CF-4, CF-5 (the last eight pages), CF-13, CF-18, CF-19 and CF-21, which
were not before the Commission and therefore not part of the record that the
Commission transmitted to the Court under rules 317 and 318.
[31]
The Court does not completely agree with the AGC’s
position and is of the opinion that it should accept and consider some of the
documents presented by Mr. Jean Pierre on this judicial review. It is
well established that, in principle, the evidentiary record that must be filed
with the Court on a judicial review application is limited to the one that was
before the administrative tribunal when it issued its decision. However, there
are some exceptions to this principle, particularly where the additional
evidence is related to allegations of a breach of procedural fairness. Indeed,
where a breach of procedural fairness is alleged, the Court may accept evidence
that can assist it in determining the issue (Khapar at para 65; Association
of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012
FCA 22 at para 20).
[32]
Mr. Jean Pierre recognizes that
exhibits CF-18, CF-19 and CF-21 dealing with his health problems and medical
reports relate to the evidence that the Commission was seeking in order to make
its decision on Mr. Jean Pierre’s compliance with the one-year time
limit and on the application of paragraph 41(1)(e) of the CHRA. Specifically,
Exhibit CF-18 is a report from the CHOC organization dated September 2012,
referring to psychological consultations undertaken in 2012 by Mr. Jean Pierre
at that entity. Exhibit CF-19 groups together different medical reports about Mr. Jean Pierre’s
inability to work in 2012. Exhibit CF-21 contains a medical opinion regarding
two days of absence in February. Mr. Jean Pierre had not submitted
these exhibits to the decision-maker, and therefore they cannot be part of the
record before the Court to determine the reasonableness of the Commission’s
decision on the interpretation of section 41(1)(e) of the CHRA. However, the
Court considers that, in some respects, these exhibits are also linked to the
procedural fairness arguments advanced by Mr. Jean Pierre. Thus, the Court agrees that the documents contained in exhibits CF-2, CF-3, CF-18, CF-19
and CF-21 may be considered as having been filed by Mr. Jean Pierre in
support of his allegations of a breach of procedural fairness by the Commission
and, as such and in this context, they may be admitted before the Court on this
application for judicial review.
[33]
However, other exhibits about the merits of Mr. Jean Pierre’s
complaint do not involve the issue of procedural fairness in any way, and
therefore the Court cannot consider them for the purposes of this application.
That is the case for exhibits CF4, CF-5 (the last eight pages) and CF-13.
III.
Analysis
A.
Did the Commission breach the duty of fairness
it owed to Mr. Jean Pierre and its duty to comply with the rules of
procedural fairness in examining his complaint?
[34]
Mr. Jean Pierre submits that the
Commission repeatedly breached its duty of procedural fairness, in particular
by not permitting documentary evidence at the first stage of the complaint
process and in the submissions requested by the Commission to assess the
applicability of paragraphs 41(1)(a), (d) and (e) of the CHRA. In
addition, after the investigator’s report was produced, Mr. Jean Pierre
could file submissions, but the limit was ten pages at that time, including
exhibits, based on the standards put in place by the Commission. Mr. Jean Pierre
submits that a serious offer to adequately document his submissions implied
that the evidence was supplementary to the ten pages of submissions.
(1)
Mr. Jean Pierre’s position
[35]
Mr. Jean Pierre argues that the
procedure adopted by the Commission should have been flexible and that the
Commission should have examined the specific circumstances of his case (Sanofi-Synthelabo
Canada Inc v Apotex Inc, 2005 FC 390; Ching-Chu v Canada (Citizenship
and Immigration), 2007 FC 855 at para 25; Djilal v Canada (Citizenship
and Immigration), 2014 FC 812 at para 36; Toussaint v Canada (Attorney
General), 2010 FC 810 at para 54). Mr. Jean Pierre contends that
by following its procedure rigidly and limiting the number of pages of the submissions,
the Commission interfered with his right to freedom of expression guaranteed by
the Canadian Charter of Rights and Freedoms [Charter] and that the
Commission did not consider section one of the Charter to explain that the
procedure was reasonable (R v Oakes, [1986] 1 S.C.R. 103 at para 63-71). Mr. Jean Pierre
notes that the proportionality considerations raised in Oakes apply in
the administrative context (Canadian Broadcasting Corporation v Warden of
Bowden Institution, 2015 FC 173 at para 36, 37, 38, 50). He also states
that the Supreme Court has already ruled on the importance that must be given
to freedom of expression (Irwin Toy Ltd v Quebec (Attorney General), [1989]
1 SCR 927 at para 105). Mr. Jean Pierre claims that because of the page
limit imposed by the Commission, he was unable to present all the facts
relevant to his case (Forster v Canada (Attorney General), 2006 FC 787 at
para 78).
[36]
Moreover, Mr. Jean Pierre complains
about the fact that the Commission indicated in its decision that it had
concerns about the documentary evidence submitted while repeating a number of
times that evidence was not necessary at the initial stage of screening
complaints made to the Commission. In addition, according to Mr. Jean Pierre, the
Commission did not inform him of its reservations and did not give him the
opportunity to make full submissions (Standinghorn v Atcheynum, 2007 FC
1137 [Standinghorn] at para 28-29, 40; Kaur v Canada (Citizenship and
Immigration), 2013 FC 1023 [Kaur] at para 20; Itota v Canada (Citizenship
and Immigration), 2013 FC 1058 [Itota] at para 10; Keqaj v Canada
(Citizenship and Immigration ), 2008 FC 388 [Keqaj] at para 58). Mr. Jean Pierre
adds that he had a legitimate expectation that evidence was not necessary at
this initial stage of the Commission’s process (Apotex Inc v Canada (Attorney
General), [2000] 4 FCR 264 at para 123).
[37]
Finally, Mr. Jean Pierre contends that
the Commission did not meet the factors in the Baker decision with
respect to procedural fairness (Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at para 22-28). The Commission should have taken the facts
alleged by Mr. Jean Pierre as proven (Love v Office of the Privacy
Commissioner of Canada, 2014 FC 643 at para 14, 31, 51, 66). In short, says
Mr. Jean Pierre, the Commission could dismiss the complaint only if it was a
plain and obvious case (Bredin v Canada (Attorney General), 2006 FC 1178
at para 23-24 and 42 [Bredin FC]). Considering the Commission’s numerous
abusive and derogatory acts, its decisions and omissions constitute an abuse of
power in Mr. Jean Pierre’s view (Brown v Canada (Attorney General),
2009 FC 758 at para 34).
[38]
The Court does not share Mr. Jean Pierre’s
opinion and finds that the Commission did not breach the duty of fairness it owed
to Mr. Jean Pierre. “At common law, the minimum level
of procedural fairness required of an administrative tribunal has at least
three requirements: notice of the case to be met, the opportunity to make
submissions, and an unbiased decision maker” (Standinghorn at para 40). In this case, the Commission met
each of those criteria.
[39]
Mr. Jean Pierre was given at least two
distinct opportunities to provide information after being told that paragraphs 41(1)(a),
(d) and (e) of the CHRA could apply to his complaint. The first time was after
the Commission’s letter dated August 15, 2013, asking him for his position
statement and his evidence on those paragraphs in the context of Ms. Audet’s
investigation; then a second time after he received the investigator’s report
dated February 12, 2014. Each time, Mr. Jean Pierre responded, first
with his letter of September 24, 2013, then with his submissions of June 9,
2014.
(2)
Mr. Jean Pierre’s observations and
submissions
[40]
With respect to the submissions that preceded Ms. Audet’s
report, the Commission first indicated to Mr. Jean Pierre that he had
to limit his position statement and his evidence sent to the investigator to
the factors referred to in paragraphs 41(1)(a), (d) and (e) of the CHRA. The
invitation sent by the Commission indicated clearly what the Commission’s
concerns were at this initial stage of the complaint process (Kaur at
para 20; Itota at para 10; Keqaj at para 58). The Commission’s
instructions at this stage of the procedure were clear: Mr. Jean Pierre
had to provide the information and documentary evidence required in relation
to paragraphs 41(1)(a), (d) and (e) of the CHRA. Nothing more. It was
incumbent on Mr. Jean Pierre to provide satisfactory explanations for
the late filing of the complaint and to convince the Commission to agree to
deal with his complaint (Bredin v Canada (Attorney General), 2008 FCA
360 [Bredin FCA] at para 18). Moreover, it is agreed and established
that the Commission does not examine either the substance of the discrimination
or the merits of the case at this preliminary stage of a complaint (Good v
Canada (Attorney General), 2005 FC 1276 at para 21; Khapar at para
64). In fact, the limits imposed by the Commission did not restrict the submissions
and documentary evidence that Mr. Jean Pierre could put forward to
respond to whether paragraphs 41(1)(a), (d) and (e) of the CHRA applied to
his case.
[41]
Mr. Jean Pierre responded to this
invitation from the Commission by submitting his letter of September 24, 2013. It
is true that, in its instructions on the position statement, the Commission indicated
that it would not consider evidence related to allegations concerning the merits
of the complaint and the discrimination raised by Mr. Jean Pierre. Mr. Jean Pierre
could, however, file evidence in connection with paragraphs 41(1)(a), (d) and (e),
and specifically the issue of the time limit, provided that he complied with
the parameters imposed by the Commission.
[42]
With respect to the submissions that followed
the investigator’s report, the instructions showed that Mr. Jean Pierre
could include exhibits with his submissions, subject to the ten-page limit
imposed by the Commission at this stage. This Court has confirmed that the
Commission’s procedure of putting a cap on the length of submissions at this
stage of the complaint process is reasonable (Donoghue v Minister of
National Defence, 2010 FC 404 [Donoghue] at para 28; Boshra at
para 50-52). Such instructions do not raise the issue of procedural fairness.
[43]
Accordingly, in fact, Mr. Jean Pierre was
actually able to file submissions both before and after he received the final
version of Ms. Audet’s report. The Commission applied its usual procedure
and usual internal policy to Mr. Jean Pierre’s complaint. In this
case, the Court is of the opinion that these two opportunities provided to Mr. Jean Pierre
were more than sufficient to comply with procedural fairness and do not
constitute an abuse of power.
[44]
The Court does not agree with Mr. Jean Pierre
that he was [translation] “muzzled” by the Commission’s process. Certainly, in
his submissions following Ms. Audet’s report, Mr. Jean-Pierre could
present only ten pages of submissions rather than the 38 pages he had initially
sent in March 2014. That represented more than 50 paragraphs of submissions to
weed out, according to Mr. Jean Pierre. However, it does not appear to the
Court that by being limited to ten pages, Mr. Jean Pierre was unable
to put forward the arguments and file the necessary evidence to respond to the
issues that the Commission had to consider under paragraphs 41(1)(a), (d)
and (e) of the CHRA. The fact that Mr. Jean Pierre was unable to
present documents on the merits of his discrimination complaint does not mean
that he could not present documents pertaining to the issues raised by those
three paragraphs. Moreover, Mr. Jean Pierre did not show in his submissions
to this Court what arguments he was, in short, prevented from making after
reducing his submissions from 38 to 10 pages. The degree of elaboration and
detail was certainly different, and some of the paragraphs initially written by
Mr. Jean Pierre had to be removed in his submissions of June 9, 2014,
but the Court is satisfied that Mr. Jean Pierre had the opportunity
to make his submissions and to be heard.
(3)
Mr. Jean Pierre’s medical condition
[45]
In addition, in terms of his medical condition
and health problems, Mr. Jean Pierre indicated in his letter of
September 24, 2013, and in his submissions of June 9, 2014, that he had had two
severe depressions totalling three months of incapacity and that he had
consulted the CHOC intervention group. The additional evidence adduced by Mr. Jean Pierre
on this judicial review does not show a breach of procedural fairness. In this
Court, Mr. Jean Pierre submitted two new medical and therapy
certificates (exhibits CF-18, CF-19 and CF-20), but the information they
contain essentially repeats what was already before the Commission and available
at the time of Ms. Audet’s investigation. Moreover, both Ms. Audet’s
report and the Commission’s decision refer to Mr. Jean Pierre’s health
problems.
[46]
Thus, in his submissions of September 24, 2013,
and June 9, 2014, Mr. Jean Pierre had the opportunity to present his
arguments that the last alleged discriminatory practice did not date back to
October 2011 and that he did not become aware of the statements made by Mses. Giroux
and Clément, which he described as discriminatory and libellous, until May 25,
2012. The Commission considered Mr. Jean Pierre’s submissions but did
not agree with them. Instead, the Commission adopted the findings in Ms. Audet’s
report regarding the date of the last discriminatory practice that the
complaint was based on. Paragraph 41(1)(e) speaks of “acts or omissions” that the complaint is based on,
and the last act described by Mr. Jean Pierre occurred in October
2011, according to the investigator. Ms. Audet therefore received and mentioned
Mr. Jean Pierre’s submissions with respect to May 2012, but she did
not accept them and explained the reasons for that in her decision. There was
no breach of procedural fairness here.
(4)
Other arguments of Mr. Jean Pierre
[47]
Mr. Jean Pierre submits that he had a
legitimate expectation that evidence was not necessary. However, the Commission’s
instructions did not say that evidence was not required; rather, they
stipulated that evidence was not necessary solely with respect to the
allegations of discrimination and human rights. In fact, the jurisprudence has
established that the Commission does not examine the merits of a complaint at
this preliminary stage (Good at para 21; Khapar at para 64). Mr. Jean Pierre,
however, had ample opportunity to adduce evidence in connection with paragraphs 41(1)(a),
(d) and (e) of the CHRA by following the procedure and the page limits
established by the Commission. The fact that Mr. Jean Pierre misunderstood
or misinterpreted the Commission’s instructions about his position statement to
be filed as part of the preparation of the investigation report does not
constitute a breach of procedural fairness by the Commission.
[48]
Mr. Jean Pierre also argues that the
Commission was required to to take all of his submissions as proven unless the
contrary was shown (Love at para 14, 31, 51, 66). The Court does not
concur. In that decision cited by Mr. Jean Pierre, the Court indicated that
allegations of fact contained in a complaint must be presumed true and taken as
true (Love at para 31). They are not submissions made in the context of
an investigation under subsection 41(1) of the CHRA. The investigator and the
Commission took as proven the facts that Mr. Jean Pierre’s complaint
was based on but not the explanations he gave for failing to comply with the
one-year time limit. Also, the Commission did not err in this regard. It simply
did not decide on the truth of the facts contained in Mr. Jean Pierre’s
complaint. Rather, it determined that his explanations about the time period in
which he filed his complaint were not acceptable. Its discretion to decide
whether to deal with a complaint made that option available, and there was no
breach of procedural fairness in this context.
[49]
The Court recognizes that it is possible, in
some cases, for decision-makers to fetter their discretion by refusing to
exercise it (Ching-Chu at para 25; Djilal at para 36; Toussaint
at para 54; Brown at para 34). However, in this case, that is
not what the Commission did because the ultimate goal of the investigation was
to determine whether it should deal with Mr. Jean Pierre’s complaint.
The Commission examined the unique circumstances of the case before making its
decision and providing explanations as to why it would not exercise its discretion.
The Commission mentioned Mr. Jean Pierre’s written submissions quoted
in Ms. Audet’s report. It should be noted again that Mr. Jean Pierre
had a number of opportunities to present written submissions to the Commission
and to present the relevant facts (Fortster at para 78) before and after
Ms. Audet’s report.
[50]
Lastly, Mr. Jean Pierre raises a
breach of his Charter-protected right of freedom of expression. He argues that,
in deciding whether an administrative decision breaches a Charter right, “the reasonableness analysis is one that centres on
proportionality, that is, on ensuring that the decision interferes with the
relevant Charter guarantee no more than is necessary given the statutory
objectives. If the decision is disproportionately impairing of the guarantee,
it is unreasonable” (Canadian Broadcasting Corporation at para
37). In this case, the jurisprudence has already established that the procedure
adopted by the Commission in terms of dismissing a complaint does not breach
procedural fairness. Therefore, it follows that it does not breach the right of
freedom of expression.
[51]
A page limit imposed by an administrative body cannot
be considered an unreasonable limit on freedom of expression. Indeed, there is
no breach of freedom of expression where an applicant (as is the case here) can
address the Commission a number of times, even if he or she must do it in a
specific framework. The right to respond and procedural fairness remain subject
to the authority of an administrative tribunal to be master of its own
procedures (Beno v Canada (Attorney General), 2002 FCT 142 at para 101; Baier
v Alberta, 2007 SCC 31 at para 20; Montréal (City) v 2952-1366 Inc, 2005
SCC 62, at para 79). In To-Thanh-Hien v Canada (Attorney General), 2004
FC 1497 at para 50, the Court concluded that “[i]t is
clear that the Applicant had the opportunity to respond to the Supplementary
Investigation Report. The fact that she was not permitted to augment her
response does not change that fact. A tribunal is entitled to establish limits
on what it will accept, as an aspect of managing its own procedures.” Moreover,
in Boshra, the Court recognized that the fact that the Commission limits
the length of an applicant’s submissions is not a breach of procedural fairness
(Boshra at para 50-52).
[52]
For all these reasons, the Court concludes that
there was no breach of the rules of procedural fairness in the Commission’s
decision. The tribunal record does not support a finding that Mr. Jean Pierre
was unable to submit his position to the Commission effectively.
B.
Was the Commission’s decision to not deal with Mr. Jean Pierre’s
complaint unreasonable?
[53]
Mr. Jean Pierre also submits that the
Commission’s decision is unreasonable. First, Mr. Jean Pierre contends
that the Commission should have explained in its reasons why it agreed with the
investigator’s report and that it had considered Mr. Jean Pierre’s objections.
This lack of explanation has a negative impact on the transparency,
intelligibility and reasonableness of the decision (Dunsmuir at para 47;
Sandhu v Canada (Citizenship and Immigration), 2014 FC 834, at para 18; Baker
at para 38-39; Turner v Canada (Attorney General) 2012 FCA 159 [Turner]
at para 43, 45; Herbert v Canada (Attorney General), 2008 FC 969 [Herbert]
at para 26-27).
[54]
Second, Mr. Jean Pierre submits that the
Commission’s interpretation of paragraph 41(1) (e) of the CHRA is
unreasonable because it dictates that the date for calculating the one-year time
limit begins on the day that the last discriminatory practice occurred.
According to Mr. Jean Pierre, the time limit should instead be measured from
the date the person becomes aware of the existence of a fault (Van Lyman c
Canada, 2011 FC 909 [Van Vlymen] at para 5-12; Bank of Montréal v
Bail Ltée, [1992] 2 S.C.R. 554 at para 99). Mr. Jean Pierre also
submiits that the complaint was presented within the legal time limits because
of the suspension of prescription of the time limits set out in article 2904
of the Civil Code of Québec (Caisse Desjardins de St-Hubert v Canada
(Attorney General), 2014 FC 779 at para 31). Finally, according to Mr. Jean
Pierre, the Commission fettered its discretion and did not enlarge its mind by failing
to take into account all the relevant factors that would have allowed it to
consider extending the time limit in this case (R v S (RD), [1997] 3 SCR
484 at para 42).
[55]
The Court does not agree. The Court is satisfied
that the Commission’s reasons in this case were sufficient and do not make the
Commission’s decision to not deal with Mr. Jean Pierre’s complaint
unreasonable. Although the Court would perhaps have not reached the same
conclusion, the Court is also of the opinion that the evidence is sufficient to
support the Commission’s findings and that the Court’s intervention is not
warranted in the circumstances.
(1)
Adequacy of reasons
[56]
The Court first concludes that the Commission’s
reasons were adequate in this case and do not make the decision unreasonable.
Because the decssion the Commission sent to Mr. Jean Pierre on August
29, 2014, was very short and adopted the recommendation in Ms. Audet’s
report, the Court may, for the purposes of judicial review, consider that the
investigator’s report forms part of the Commission’s reasons (Arias v Royal
Canadian Mounted Police, 2014 CanLII 13155 [Arias] at para 13; Rhéaume
v Canada (Attorney General), 2007 FC 919 [Rhéaume] at para 26; Khapar
at para 73; Boshra at para 48; Bredin FC at para 57).
[57]
The Supreme Court’s decision in Newfoundland
Nurses states that “the reasons must be read
together with the outcome and serve the purpose of showing whether the result
falls within a range of possible outcomes” (at para 14). Accordingly, the
Court must not substitute its reasons for the Commission’s but instead must examine
the record to assess the reasonableness of the decision. In other words, “if the reasons allow the reviewing court to understand why
the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir criteria
are met” (Newfoundland Nurses at para 16). The appropriate
standard is the reasonableness of the decision, not perfection.
[58]
The Court is of the opinion that, considered as
a whole, the Commission’s decision took into account all the relevant factors
and was supported by a completely reasonable explanation in light of the
evidence. It shows the line of analysis that the investigator and the
Commission used to reach their conclusion. As such, the reasons for the
decision are transparent, intelligible and reflect a review of all the evidence
in the record.
[59]
Certainly, the jurisprudence has established
that “the Commission must be cautious in determining
whether a complaint warrants further inquiry” (Khapar at para
46). In addition, “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” (Khapar at para 46). However, the
Commission also has “ample discretion to decide when not to deal with a complaint
at this preliminary stage” (Khapar at para 46).
[60]
In Mr. Jean Pierre’s case, the Commission’s
reasons and record allow the Court to understand why it decided to not deal
with the complaint filed by Mr. Jean Pierre. The Commission states in the
reasons that the explanations provided by Mr. Jean Pierre do not show
that he did everything a reasonable person would do in the circumstances to proceed
with the complaint and that there was insufficient evidence of his health prior
to the filing of the complaint. There is no indication that the Commission
failed to consider the submissions or arguments put forward by Mr. Jean Pierre
(Turner at para 43; Herbert at para 26-27).
(2)
Commission’s conclusions
[61]
It is also clear from the decision that the
Commission considered the investigator’s report and the submissions of the
parties. Ms. Audet reviewed but rejected Mr. Jean Pierre’s arguments.
Mr. Jean Pierre suggested that there was another incident after May
25, 2012, but that he could not disclose it. The investigator noted it in her
report but could not consider it without evidence. The investigator also took
note of Mr. Jean Pierre’s submissions that he was not aware of the
last discriminatory practice until May 25, 2012, but did not accept them. She
explained that the receipt of documents or information as a result of his
access to information request did not constitute a discriminatory practice as
such. That conclusion is not unreasonable. Indeed, the facts referred to in the
documents that Mr. Jean Pierre received date back to the fall of 2011
and to the alleged actions of Mses. Giroux and Clément, which Mr. Jean Pierre
was well of. The facts identified by the investigator suggested that the last
discriminatory practice dated back to October 2011. The Court considers that
this finding is reasonable and supported by the evidence.
[62]
Perhaps Ms. Audet could have referred in
more detail to certain statements made by Mr. Jean Pierre in his
letter of September 24, 2013, regarding events that allegedly happened after
May 2012 (for example, the clerical work that Mr. Jean Pierre was
required to do and his superiors’ refusal to accept a recommendation from a
supervisor). However, the fact that Ms. Audet did not expressly mention
these elements in her report does not mean she did not consider them. An
administrative tribunal is presumed to have considered all the evidence in the
record and is not required to comment on it in detail (Kanagendren v Canada
(Citizenship and Immigration), 2015 FCA 86 at para 36). Similarly, an
administrative tribunal is not required to mention every argument raised by the
parties or to refer to each constituent element (Newfoundland Nurses at
para 16). In addition, the Court observes that these references made by Mr. Jean Pierre
remain vague and general with respect to both the substance of the alleged acts
and when they occurred.
(3)
Calculation of one-year period
[63]
The Court does not agree with Mr. Jean Pierre’s
opinion that it was unreasonable on the part of the Commission to begin
calculating the one-year period in October 2011, when the last discriminatory practice
occurred. Certainly, there may be situations where a complainant is not aware
of the discriminatory practice at the time it occured. In some cases, even though
an act occurred in the past, the act referred to in the CHRA that triggers the
period could arise once the person who is able to file the complaint becomes
aware of it.
[64]
In this case however, based on the elements
described by Mr. Jean Pierre in support of his complaint, the
investigator found that the last relevant discriminatory practice occurred in October
2011, not on the date he received the documents after his access to information
request. The investigator added that, where a complainant becomes aware of a
discriminatory practice after the fact, the date of the discrimination is when
the complainant should have known that he or she was discriminated against. In Mr. Jean Pierre’s
case, the evidence showed that Mr. Jean Pierre was describing and
referring to a discrimination situation that had lasted for a number of years
and had led him to pursue a number of parallel recourses since 2009. The
documents disclosed by the access to information request corroborated this
state of affairs and also referred to the period of the fall of 2011 and the
behaviour of Mses. Giroux and Clément that had already led Mr. Jean Pierre
to pursue recourses in respect of them. According to the investigator, Mr. Jean Pierre
[translation] “should have known before May 2012 that he was perhaps the
subject of discriminatory practices. In fact, it is clear that he realized
there was a problem at work prior to May 2012 because he had filed grievances
against the [CIC] and a number of complaints with the PSST and the PSLRB beginning
in 2009”. The investigator stated that it did not appear that [translation] “the
complainant received any additional information in May 2012 about his
allegations of discrimination that he should not have known before.”
[65]
Furthermore, in one of his complaints filed with
the PSST, Mr. Jean Pierre alleged that Mses. Giroux and Clément and
the assessment board had discriminated against him for the position he was
seeking. In these circumstances, the Court is of the opinion that the
conclusion of the Commission and the investigator is reasonable and supported
by the evidence that was before the decision-maker. Accordingly, it was open to
the investigator and the Commission to conclude that the last discriminatory practice
dated back to October 2011 and that Mr. Jean Pierre was aware of the
relevant factual elements regarding these discriminatory practices. In receiving
the response to his access to information request in May 2012, he may have
learned new information about the actions of the fall of 2011; but that does
not make that response a new discriminatory practice under the CHRA. In the
Court’s view, it was therefore not unreasonable for the investigator to write
that Mr. Jean Pierre should have known prior to May 2012 that he had
been discriminated against. This is not a similar situation to the decisions on
time limits that Mr. Jean Pierre refers to where the complainants
were not aware of the situation giving rise to the recourse they wished to
institute (Van Vlymen at para 5-12).
[66]
The investigator’s report contained a number of
comments that support the reasons why Mr. Jean Pierre should have
been aware of the discriminatory practices and should have filed his complaint prior
to May 2013. The Court does not consider this speculation but rather is of the
opinion that they are reasonable conclusions on the evidence Ms. Audet had
before her. It was sufficiently plain and obvious that Mr. Jean Pierre’s
complaint should be dismissed (Bredin FC at para 24).
(4)
Date Mr. Jean Pierre filed his
complaint
[67]
Moreover, even if the Court assumed that the
receipt of the response to the access for information request in May 2012 in
fact constituted the last discriminatory practice within the meaning of the
CHRA, Mr. Jean Pierre still filed his complaint beyond the maximum
one-year period from that later date. Indeed, his letter of May 23, 2013, was
not a complaint according to the Commission, and Mr. Jean Pierre’s complaint
was not, in fact, received until July 9, 2013. Therefore, it also did not
comply with the one-year period because it was filed more than six weeks too
late.
[68]
Again, it was reasonable for the investigator
and the Commission to determine that Mr. Jean Pierre did not file the
complaint in an acceptable format until July 9, 2013. In this case, even though
the Court may not have reached the same conclusion, it was open to the
Commission to determine that it did not really receive Mr. Jean Pierre’s
complaint until July 9, 2013, after the one-year time limit had
expired. Moreover, in Good, the Court indicated, in discussing Johnston
v Canada Mortgage and Housing Corp., 2004 FC 918, that “[t]he date when the complainant first contacts the
Commission regarding a possible complaint does not stop the Clock for the
one-year time limit” (Good at para 26). In addition, in Rhéaume,
at paragraph 33, the Court determined that a simple earlier correspondence with
the Commission regarding the applicant’s intention to file a complaint did not
constitute a complaint under the CHRA.
[69]
In this case, the Commission reasonably
concluded that Mr. Jean Pierre’s formal complaint was received on
July 9, 2013 (when he completed the usual requirements for a complaint), not May
23, 2013 (when Mr. Jean Pierre’s letter did not contain all the
necessary information for a complaint in a form acceptable to the Commission). A
complaint must be in a form acceptable to the Commission (Rhéaume at
para 33, 37), and it was incumbent on Mr. Jean Pierre to comply with
this requirement. It is clear in the circumstances that the Commission did not recognize
the letter of May 23, 2013, as an acceptable complaint.
[70]
Accordingly, even if we adopt Mr. Jean Pierre’s
dates, his complaint was also out of time under paragraph 41(1) (e) of the
CHRA.
[71]
Mr. Jean Pierre also maintains that the
Commission should have exercised its discretion to deal with the complaint even
though it was late. The Commission decided to not exercise its discretion in
the circumstances. Again, it was open to the Commission to do so. The Court is
satisfied that this decision cannot be characterized as unreasonable because the
Commission considered Mr. Jean Pierre’s submissions and explanations
but simply did not accept them. The Commission’s decision on this point is
supported by reasons and falls within a range of possible, acceptable outcomes (Dunsmuir
at para 47). Once again, even if the Court may have preferred a different conclusion,
that is not sufficient to make the Commission’s conclusion unreasonable.
[72]
The investigator also mentioned in her report
that Mr. Jean Pierre had indicated that his work situation was
causing health problems. And in its decision, the Commission expressly referred
to Mr. Jean Pierre’s health problems but added that the evidence was
insufficient to conclude that his health prevented him from making a complaint
to the Commission. Thus, both the investigator and the Commission examined Mr. Jean Pierre’s
allegation that he was incapacitated during part of the period preceding the
filing of his complaint, but it did not accept the allegation. In the absence
of evidence from Mr. Jean Pierre that this incapacity affected his
ability to file a complaint within the prescribed time limit, this conclusion
was not unreasonable. It is, in fact, well established that it is not for the
Court to re-examine the evidence and reweigh its probative value on a judicial
review (Gandhi at para 70).
[73]
The Commission considered the relevant factors
in making its decision. Even though Mr. Jean Pierre claimed that he
only became aware of the last discriminatory practice on May 25, 2012,
it was reasonable for the investigator to determine that this factor did not
justify an extension because Mr. Jean Pierre had nonetheless worked
at resolving his problems in the workplace. The investigator did not accept Mr. Jean Pierre’s
explanation that he feared reprisals from his employer because this was the
fourth recourse he had taken against his employer regarding the allegations of
discrimination that he says he suffered (and in particular the actions of Mses.
Giroux and Clément). Mr. Jean Pierre had indeed filed complaints with
the PSLRB and the CHRT, as Ms. Audet noted in her report. The Court is not
persuaded that the conclusion of the investigator and the Commission in this
regard does not fall within a range of possible, acceptable outcomes in the
circumstances.
[74]
Moreover, the use of another recourse does not absolve
complainants of their responsibility to file a complaint within the prescribed
time limit (Arias at para 14).
[75]
Last, Mr. Jean Pierre cannot claim
that his recourse was suspended under article 2904 of the Civil Code of
Québec. Indeed, Mr. Jean Pierre cannot advance this new argument
that his complaint was filed within the legal time limit because of the
suspension of the prescription of the time period under article 2904 of the Civil
Code of Québec because he did not raise this argument before the Commission
(Alberta Teachers at para 22). He is estopped from doing so before this
Court.
[76]
The Court is accordingly of the opinion that, in
light of the evidence that was before the Commission, the decision to not deal
with Mr. Jean Pierre’s complaint falls within a range of reasonable,
possible outcomes in respect of the facts and law.
IV.
Conclusion
[77]
For all the foregoing reasons, Mr. Jean Pierre’s
application for judicial review is dismissed. The
Commission’s decision to not deal with Mr. Jean Pierre’s complaint is
transparent and intelligible, and falls within a range of possible, acceptable outcomes
that are defensible in respect of the facts and law. In
addition, in the process, the Commission complied with Mr. Jean Pierre’s
right to procedural fairness.
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