Docket:
T-1420-14
Citation:
2015 FC 287
Ottawa, Ontario, March 6, 2015
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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CECILIA
CARROLL
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c
F-7. Ms Carroll challenges a decision of the Canadian Human Rights Commission [the
Commission] which dismissed her complaint as “vexatious” within the meaning of
paragraph 41(1)(d) of the Canadian Human Rights Act, RSC 1985, c H-6 [the
Act].
[2]
For the reasons that follow, I have concluded
that the Commission’s decision was both procedurally unfair and unreasonable.
This application is granted and the complaint referred back to the Commission.
I.
Facts
[3]
The applicant was employed with the Department
of Employment and Social Development Canada, formerly known as Human Resources
and Skills Development Canada [the employer]. On February 8, 1993, she went on
sick leave without pay due to back pain. She has never since returned to the
workplace.
[4]
In 2007, the employer contacted the applicant
and demanded that she either return to work or retire on medical grounds. The
employer informed her that she would otherwise be dismissed due to medical
incapacity. The applicant replied that she would prefer to stay on long-term
disability leave until she could receive medical clearance to return to work.
Further action on the matter was postponed until 2011 due to issues which arose
with the applicant’s superannuation plan.
[5]
The employer renewed the request on October 5,
2011. Some later time that month, the applicant advised the employer that she
would apply for medical retirement under duress, effective December 29, 2011.
[6]
On October 7, 2011, the applicant filed a first
level grievance with the employer. Under the “Grievance details” section of the
complaint form, the applicant wrote the following:
I grieve the employer’s letter of October 5,
2011 which requests that I either return to work or in some manner, terminate
my employment. This is intimidation and discrimination based on disability. It
is contrary to the employer’s obligations under the collective agreement and
the Canadian Human Rights Act.
[7]
The applicant requested the following corrective
action:
1. That the
employer withdraw its request and not make similar requests in the future.
2. That I be
accommodated by being allowed to remain on LWOP [leave without pay] status
until I am able to return to work.
3. That I be
made whole.
[8]
On November 28, 2011, the employer denied the
grievance. Among other things, the reply letter stated the following:
You have been on sick leave without pay
since February 1993. Expecting you to make a decision in regards a separation
option following more than eighteen years of sick leave without pay is neither
discriminatory, an act of intimidation nor in contravention of your collective
agreement or the Canadian Human Rights Act. Rather, requiring you to make a
decision in regards a separation option is fully in accord with Treasury
Board’s Directive on Leave and Special Working Arrangements. And,
since you cannot return to work within the foreseeable future, you cannot be
accommodated in the workplace.
[Emphasis added]
[9]
That same day, the applicant filed a second
level grievance. Her union representative submitted five pages of argument on
her behalf alleging, in particular, that the Policy on Leave without Pay
(afterwards replaced with the Directive on Leave and Special Working Arrangements)
unlawfully discriminates against employees who are on leave for medical reasons
and have been in receipt of SunLife disability benefits for over two
years. This is because the employer targets only these employees, the
representative argued. Employees on leave for other reasons are not similarly
affected, nor are disabled employees who are not insured by SunLife.
[10]
On December 8, 2011, the applicant contacted the
Commission for the first time and explained that she wanted to file a complaint
against the employer. She eventually filed a complaint on February 17, 2012. By
letter dated March 5, 2012, the Commission informed her that she would have to
exhaust the grievance procedures before it would consider her complaint.
[11]
On March 26, 2012, the employer denied the
second level grievance. Its letter repeated the text of the one which had
denied her first grievance almost verbatim.
[12]
On April 12, 2012, the applicant filed a third
level grievance. Her union representative submitted a one page letter on her behalf
which stated, among other things:
As previously pointed out, the Federal
Courts have ruled the Treasury Board “leave Without Pay” policy as
discriminatory. […] That fact remains and as the only authority referenced by
the employer as the basis for forcing Ms. Carroll to apply for a medical
retirement, the employer’s actions are inappropriate and a violation of a
federal court ruling.
[13]
On July 5, 2013, the employer denied the third
level grievance. This time, the reply letter was different. It stated that the
applicant never provided the employer with information about a potential return
to work. Therefore, the employer could not accommodate her. The decision-maker
continued:
Based on this information, I find that the
Employer respected the intent of the Policy on Leave Without Pay
(since replaced by the Directive on Leave and Special Working Arrangements)
in this matter.
[Emphasis added]
[14]
The decision-maker then considered whether the
employer’s letter constitutes discrimination in relation to the “application of the Policy”. She wrote that
The intent of this Directive is for
departments to manage paid and unpaid absences from work in a sound, consistent
and effective manner. As you were approved for a medical retirement, it was
clear that a return to work in a foreseeable future was not probable and as
such, I believe the Employer applied the Policy correctly.
Furthermore, I could not find any evidence
of any discrimination on the part of the Employer.
[Emphasis added]
[15]
On July 30, 2013, the applicant received a
letter from her union stating that it would not be referring her grievance for
adjudication at the Public Service Labour Relations Board [PSLRB], and
therefore that the grievance process had been exhausted.
[16]
On September 9, 2013, the applicant faxed an
updated complaint to the Commission. At the first paragraph of her complaint,
she stated:
I am a person with a disability and feel
that I was discriminated against due to my disability. I believe that Service
Canada’s use of Treasury Board’s Directive on Leave and Special Working
Arrangements is discriminatory against people with Disabilities.
[17]
On October 28, 2013, the Commission sent a
letter to the applicant advising that her complaint might be “vexatious” within
the meaning of the Act because it had already been dealt with through another
process. It further advised that the Commission would prepare a section 40/41
report to decide whether to deal with the complaint. Ms Carroll was provided
with a questionnaire and invited to submit her answers to the Commission. Upon
obtaining an extension of time, she did so on December 13, 2013.
[18]
The section 40/41 report was prepared on
February 6, 2014. In short, it recommended that the Commission dismiss the
complaint. On February 13, 2014, the applicant received a copy of the report
and was invited to make submissions in reply.
[19]
On March 10, 2014, the Commission received
submissions (six pages of detailed argument) sent on the applicant’s behalf by
a lawyer. In particular, the applicant presented the following concerns:
- Although she did raise all her human rights issues in her
grievances, at no time did the employer specifically address all these
issues. In particular, the employer never addressed the question of
whether the policy itself was discriminatory.
- The grievances were decided by the employer without assistance
from a third party. The employer is not an independent and impartial
adjudicator for human rights matters.
- In Berberi v Canada (Attorney General), 2013 FC 99, the
Federal Court held that the Commission should only filter out complaints
in “plain and obvious cases”. It further noted that the Commission “cannot abdicate its responsibility to independently
consider any decision that resulted from [another] process and the reasons
for it”. This is not a plain and obvious case for dismissal. The
section 40/41 report does not address the merits of the complaint, does
not review the directive in question, does not consider the actions or
motives of the employer, and does not investigate the complaint independently.
- The report inaccurately states that the complaint did not raise
the question of whether the directive is discriminatory. In fact, the
first paragraph of the complaint refers to the directive.
- The report states that the directive was issued by the Treasury
Board, and so the complainant cannot have it overturned by filing a
complaint against her employer. However, the employer applied this
discriminatory directive with respect to the applicant. The origin of the
directive is irrelevant. The employer’s use of this policy may be
reviewed.
[20]
That same day, the Commission also received
brief submissions from the respondent expressing agreement with the report. It
received more detailed submissions on April 11. On April 17, the Commission
forwarded a copy of the respondent’s two sets of submissions to the applicant
for her records.
[21]
The Commission rendered a decision dismissing
the complaint on April 30, 2014. On May 13, Ms Carroll received a copy of the
decision. She then applied for judicial review.
II.
Issues
[22]
This application raises two issues:
1.
Did the Commission breach the duty of procedural
fairness?
2.
Did the Commission err by finding the complaint
to be vexatious?
III.
Standard of Review
[23]
The first question is reviewable on the standard
of correctness: Dunsmuir v New Brunswick, 2008 SCC 9 at para 129; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa];
and Mission Institution v Khela, 2014 SCC 24 at para 79. The
Court must “undertake its own analysis of the question”
and, if it concludes that the decision-maker behaved unfairly, override the
decision-maker’s procedural choices: Dunsmuir, above, at para 50.
[24]
The second issue touches upon a question of
mixed fact and law involving the agency’s home statute. The standard of
reasonableness applies: Dunsmuir, above, at para 54.
IV.
Decision under Review
A.
The Commission’s Decision
[25]
The Commission’s decision, signed on April 30,
2014, reads as follows:
The Commission decided, for the reasons
identified below, not to deal with the complaint, under paragraph 41(1)(d) of
the Canadian Human Rights Act.
[26]
The decision lists the documents which the
Commission reviewed. These include the complaint forms, the section 40/41
report, the complainant’s submissions and the respondent’s submissions.
[27]
Under the “Reasons for
decision” section, the decision states the following, verbatim:
The Commission adopts the following
conclusion set out in the Section 40/41 Report:
The complainant’s human rights
allegations have been addressed by an alternate decision maker with authority
to consider human rights issues. The allegations raised in the complaint before
the Commission are the same as those addressed in the final level grievance
response. Given that the alternate decision-maker dealt with the human rights
issues raised in this complaint and that process was fair, the Commission must
respect the finality of that decision and should not deal with this complaint.
It is therefore plain and obvious that this complaint is vexatious within the
meaning of section 41(1)(d) of the Act.
B.
The Section 40/41 Report
[28]
The respondent submits that the section 40/41
report should be treated as constituting the Commission’s reasons. He argues
that this is appropriate when the Commission adopts an investigator’s
recommendations and provides no reasons or only brief reasons, pointing to Vos
v Canadian National Railway Company, 2010 FC 713 at para 36. The respondent
is correct, so it is necessary to review that report.
[29]
The report begins with a brief summary of the
complaint and a background of the Commission’s actions up to that point in
time. It then reproduces subsection 41(1) of the Act.
[30]
The report then explains in detail the factors
relevant to deciding whether a complaint is “vexatious”
under paragraph 41(1)(d). At paragraph 10, it explains that: “The Commission can refuse to deal with a complaint if an
independent decision-maker has already addressed the human rights issues.
Section 41(1)(d) of the Act calls such complaints ‘vexatious’”.
[31]
The report references relevant case law. In Boudreault
v Canada (Attorney General), [1995] FCJ No 1055 (TD), the Federal Court
concluded that the Commission cannot refuse to entertain a complaint simply
because it has already been dealt with by another process. The Commission must
review the evidence itself but it can use evidence gathered through the other
process. However, in Canada Post Corp v Barrette, [2000] FCJ No 539
(FCA) [Barrette], the Federal Court of Appeal stated that the Commission
must turn its mind to the decision of the alternative decision-maker and
determine whether the complaint might attract the application of paragraph
41(1)(d).
[32]
The report mentions that the Supreme Court
considered this issue in two recent cases. In British Columbia (Workers’
Compensation Board) v Figliola, 2011 SCC 52 [Figliola], the Court
held that human rights tribunals must respect the finality of decisions
rendered by other decision-makers with concurrent jurisdiction over human
rights legislation, where “the previously decided legal
issue was essentially the same as what is being complained of”. In Penner
v Niagara (Regional Police Services Board), 2013 SCC 19, the Court stated
that, when a case has already been resolved through another process, the
decision-maker must look at the circumstances to decide whether it would be
fair to let the second process continue.
[33]
The report lists several factors to be
considered in deciding whether or not a complaint is vexatious. It then
summarizes the positions of the parties.
[34]
The report proceeds to analyze the complaint. At
paragraph 39, the investigator states that “the
complainant has pursued her human rights issues through the grievance process
and the other process dealt with all of her human rights allegations.”
As such, adjudication of the complaint would not advance the purposes of the
Act.
[35]
At paragraph 40, the investigator states that “[t]here is no significant difference between the grievance
process and the Commission process and in particular, an adjudicator appointed
under the Public Service Labour Relations Act has the authority to interpret
and apply the Canadian Human Rights Act.”
[36]
At paragraph 41, the investigator concludes that
there is no evidence that the complaint was filed to “annoy,
embarrass or harass the respondent”, but that it is “vexatious” because the allegations have been “fully addressed through the grievance process”.
[37]
At paragraph 42, the investigator takes aim at
the complainant’s submission that the Directive on Leave and Special Working
Arrangements is discriminatory. He writes:
This is a new allegation that was not contained
in the complaint form. It should be noted that the policy that the complainant
feels is discriminatory is not an HRSDC policy but rather a Treasury Board
policy. If the complainant is seeking to have the Directive invalidated, this
cannot be achieved by filing a complaint against HRSDC.
[38]
At paragraph 43, the investigator concludes that
it is “plain and obvious that this complaint is
vexatious within the meaning of section 41(1)(d) of the Act”.
V.
Submissions of the Parties
A.
Did the Commission breach the duty of procedural
fairness?
[39]
The applicant argues that the Commission
breached the duty of fairness by failing to consider the submissions she
provided, which disputed several key facts upon which the investigator relied.
The Commission neither addressed these submissions nor provided any reasons for
rejecting them. It merely adopted the conclusion of the section 40/41 report.
[40]
In Kollar v Canadian Imperial Bank of
Commerce, 2002 FCT 842 at para 36, the Federal Court acknowledged the
importance of submissions provided in response to investigators’ reports. The
applicant contends that, in the present case, the report mischaracterized the
facts. Since her submissions disputed several of these facts, the Commission
should have declined to endorse the report on the strength of her submissions,
or should have exercised its discretion to hold an oral hearing to receive
additional submissions.
[41]
The applicant further argues that the Commission
breached the duty of fairness by failing to give adequate reasons. It simply
adopted a flawed report without providing its own reasons for decision. In Sketchley
v Canada (Attorney General), 2004 FC 1151 at para 61 [Sketchley FC],
the Court stated that judicial intervention is warranted where an applicant
provides detailed submissions but the Commission does not address them in its
decision. This case was upheld on appeal: 2005 FCA 404 [Sketchley FCA].
[42]
The respondent counters that there is no basis
to conclude that the Commission failed to consider the applicant’s submissions.
The decision states that the Commission reviewed the complaint form, the
section 40/41 report, the applicant’s submissions and the respondent’s
submissions. Receiving a negative decision is an insufficient ground for
concluding that submissions were not considered. The Commission was entitled to
consider and weigh the evidence before it in the manner which it did.
[43]
The respondent also contends that the
Commission’s reasons were adequate. The investigator’s lengthy report
constitutes the Commission’s reasons: Vos, above, at para 36; Sketchley
FCA, above, at para 37.
[44]
The respondent disputes the allegation that the
report is flawed. The applicant’s disagreement with its findings does not mean
that it is procedurally unfair. In order to be fair, the investigation had to
be thorough and neutral. It was neutral because the investigator was not biased
and kept an open mind: Canada (Attorney General) v Davis, 2010
FCA 134 at para 6 [Davis FCA]; Vos, above, at para 44.
[45]
According to the respondent, thoroughness
requires that the parties be given a reasonable opportunity to comment on the
case: Davis FCA, above, at para 6. The applicant was given the
opportunity to provide the investigator with information supporting her claim
and to comment on his report. Moreover, the applicant was given copies of the
respondent’s submissions and did not seek the opportunity to make further
comments: Hérold v Canada Revenue Agency, 2011 FC 544 at para 42.
[46]
The respondent argues that the evidence does not
support the allegation that the grievance decision-makers were not impartial.
In any event, the alleged lack of independence in the grievance process does
not affect the fairness of the process followed by the Commission: Bergeron
v Canada (Attorney General), 2013 FC 301 at para 43.
B.
Did the Commission err by finding the complaint
to be vexatious?
[47]
The applicant contends that the Commission erred
in fact and in law when it found her complaint to be vexatious within the
meaning of paragraph 41(1)(d). Even though the Commission has a discretionary
power to screen complaints, that power must be exercised reasonably and that
did not occur.
[48]
In the applicant’s view, the decision is neither
justified nor intelligible and does not fall within a range of reasonable
outcomes. It was not reasonable for either the investigator or the Commission
to find that the complaint was plainly and obviously vexatious.
[49]
Furthermore, the applicant alleges that the
Commission relied on numerous erroneous findings of fact, which rendered its
decision indefensible. In particular:
1. The report found that the issues raised in the grievance were the
same as those in the complaint – even though the applicant specifically noted
in her submissions that the three grievance responses never addressed the issue
of whether the directive itself is discriminatory.
2. The report found that a final decision had been rendered – when the
case had never been heard on its merits and no decision was ever made by an
independent or neutral body.
3. The report found that the decision-maker had the authority to
interpret human rights legislation – when that power belongs to a PSLRB
adjudicator, not to employer representatives in the grievance process.
4. The report found that the applicant raised new allegations which
were not contained in the complaint form – when the applicant had in fact
referred to those allegations in her complaint.
5.
The report found that the employer was the wrong
party to a complaint regarding a Treasury Board policy – when it is clear that
the employer applies this policy to its workplace.
[50]
The respondent counters that the Court must keep
in mind the gate-keeping role of the Commission. Subsection 41(1) instructs the
Commission to dismiss vexatious proceedings in order to avoid wasting
institutional and party resources. Parliament has expressly conferred this
discretion upon the Commission. Unless it is exercised without reasonable
grounds, the courts should not intervene.
[51]
The respondent continues that the Commission’s
role during the screening stage is to assess the sufficiency of the evidence
before it and to decide whether it is reasonable to proceed to the next stage.
The Commission does not have to look behind the facts and determine if the
complaint has been made out: Davis v Canada (Attorney General),
2009 FC 1104 at para 53 [Davis FC]; Vos, above, at para 39; Khapar
v Air Canada, 2014 FC 138 at para 64.
[52]
According to the respondent, the decision was
reasonable. The section 40/41 report looked at the totality of the
circumstances and determined that further inquiry by the Commission was not
warranted. The evidence supports that decision.
[53]
The respondent argues that the Sketchley
decisions, on which the applicant relies for the proposition that the Treasury
Board policy is discriminatory, are no longer good law on that point. They have
been overtaken by the Supreme Court of Canada’s decision in Hydro-Québec v Syndicat des employé-e-s de techniques
professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 [Hydro-Québec]. In that
case, the Court considered the duty to accommodate an employee who was
chronically absent due to medical issues and unanimously concluded that, if an
employee is unable to resume her work in the foreseeable future, the employer
has established undue hardship.
[54]
The respondent recalls that the applicant has
missed work for 18 continuous years. There is no prospect that she can return
in the foreseeable future. Therefore, the grievance decisions were consistent
with the law: Hydro-Québéc; Panula v Canada (Attorney General), 239 ACWS (3d) 165.
VI.
Analysis
[55]
The decision under review contains several flaws
that would justify the Court’s intervention. In light of the excellent
submissions made by the parties, I will address all of the reasons for which
this decision cannot stand.
A.
Did the Commission breach the duty of procedural
fairness?
[56]
In Davis FCA, above, at para 6, the
Federal Court of Appeal identified the content of the duty of fairness in cases
where the Commission relies on an investigator’s report:
The Commission must act in accordance with
natural justice. This requires that the investigation report upon which the
Commission relies be neutral and thorough and that the parties be given an
opportunity to respond to it [references omitted].
[57]
In addition, this Court recognized the twin
requirements of neutrality and thoroughness in Vos, above, at para 44.
[58]
In the case at bar, the applicant has not
alleged that the investigation lacked neutrality. There is no evidence in the
record that might support a finding that the investigator was biased or failed
to keep an open mind.
[59]
Rather, the applicant’s allegations of
unfairness must be understood as going to the other requirement of an
investigation: namely, thoroughness. Ms Carroll accuses the investigator of
failing to consider the submissions she made before he wrote his report and the
Commission of failing to consider the submissions she made as a response to
that report. Likewise, her complaint that the Commission did not provide
adequate reasons really challenges its failure to address her specific submissions.
It is related to the allegation that she was ignored without good reason.
[60]
What does thoroughness require? The Attorney
General argues that an investigation is thorough if the parties are given an
opportunity to comment on the investigator’s report, relying on Davis FCA,
above, at para 6. However, that passage does not stand for that proposition. It
states that an investigation must be “neutral and
thorough and that the parties be given an opportunity to respond” to its
findings [emphasis added]. The word “and” separates the requirement of
thoroughness from the requirement that the parties be given a chance to state
their case. These are discrete requirements – just like neutrality, which is
also connected to thoroughness with the word “and”. If any one of these
principles completely subsumed the others, the Court of Appeal would not have
listed all three when elucidating the content of the duty of fairness.
[61]
Various cases have spoken to the meaning of
thoroughness. In Kollar, above, at para 36, Justice O’Keefe stated:
Therefore, I must now determine whether in
the case before me, sufficient thoroughness existed. As part of that
determination, I must be satisfied that the reports dealt with all of the most
fundamental issues raised in the applicant’s complaint.
[62]
Because the impugned report did not deal with
the applicant’s complaint of sexual harassment, Justice O’Keefe determined that
it was not thorough. Since the Commission had accepted the recommendations of
that report, that deficiency tainted its decision as well: Kollar,
above, at paras 39-40.
[63]
Kollar was cited
in Sketchley FC, above, where Justice Beaudry held that “failure to address the substance of the complaint will lead
to the conclusion that the investigation was flawed for lack of thoroughness”,
at para 51. The Court of Appeal agreed that the investigation lacked
thoroughness because it had failed to examine a question and misapprehended the
complainant’s request: Sketchley FCA, above, at paras 122-123. Justice
Linden made clear that that defect contravened procedural fairness. Therefore,
at para 125, he deemed it unnecessary to conduct substantive review of the
Commission’s decision.
[64]
Furthermore, in Vos, above, at para 44,
Justice Lemieux stated: “One instance of lack of
thoroughness is the failure to investigate crucial evidence”.
[65]
Finally, in Davis FC, above, at para 56,
Justice Harrington entertained the idea that, where the Commission ultimately
decides to dismiss a complaint, thoroughness may require it to respond to
submissions sent in reply to an investigator’s report. Since the Commission had
referred the matter to the Tribunal in that case, he did not deem as unfair its
failure to provide a response.
[66]
However, the cases to which Justice Harrington
referred did find that the Commission should have responded to submissions
before dismissing complaints. For instance, in Herbert v Canada (Attorney General), 2008 FC 969 at para 26, Justice Zinn wrote that
…where these submissions allege substantial
and material omissions in the investigation and provide support for that
assertion, the Commission must refer to those discrepancies and indicate why it
is of the view that they are either not material or are not sufficient to
challenge the recommendation of the investigator; otherwise one cannot but
conclude that the Commission failed to consider those submissions at all.
He made clear that such a failure is a
procedural defect warranting judicial review.
[67]
The case law clearly establishes that an
investigation which does not deal with the substance of a complaint, fails to
investigate a relevant question, or fails to consider crucial evidence is
unfair because it is not thorough. That unfairness carries over to any eventual
dismissal decision rendered by the Commission. Whether the complainant has been
able to make submissions is irrelevant. If submissions were made but
disregarded, that does not increase the thoroughness of the investigation – it
decreases it.
[68]
Two clarifications are in order. First, the law
is unequivocal that investigators acting on behalf of the Commission must
conduct thorough investigations in the sense just explained. However,
complainants commonly make reply submissions to investigators’ reports, which
are reviewed by the Commission before it makes a final decision. Does the thoroughness
requirement extend to the Commission at that stage of the process, compelling
it to give proper regard to these submissions before rendering a decision?
[69]
It is my opinion that it does. As the Court of
Appeal explained in Sketchley FCA, above, at para 37, the reason that
the Commission is entitled to rely on an investigator’s report as the reasons
for its own decision is that
…for the purpose of a screening decision by
the Commission pursuant to section 44(3) of the Act, the investigator
cannot be regarded as a mere independent witness before the Commission [...]
for the purposes of the investigation, the investigator is considered to be an
extension of the Commission [references omitted].
[70]
Since a procedural duty attaches to the
extension, it would be artificial to deny that it also attaches to the whole.
The idea that an investigator must behave thoroughly, but that the Commission
can afterwards toss thoroughness out the window, is entirely counterintuitive
and would undermine the proper administration of the Act. It must be accepted
that complainants should be treated fairly throughout the decision-making
process. This is especially important because they are permitted to make
submissions, whose content may vary, at various stages of that process. A requirement
of thoroughness which survives the filing of the investigator’s report ensures
that every submission made by a complainant is given the consideration it
deserves.
[71]
Davis FC, above,
at para 56, and Herbert, above, at para 26, suggest that this is the
correct approach. They state that procedural fairness prevents the Commission
from endorsing an investigator’s report without responding to submissions which
seriously challenge its findings. Although these cases do not explicitly say
that this rule is an extension of the thoroughness requirement imposed on
investigators, it would be natural to read them that way for the reasons just
given.
[1]
Of course, thoroughness will direct different
behaviour from the investigator and the Commission. A thorough investigator
must investigate every issue and collect relevant evidence – for example, by
interviewing witnesses. The Commission does not have such an active role to
play at the screening stage. What the Commission must do in each case is read
the investigator’s report and the complainant’s submissions with diligence, in
order to obtain a careful understanding of the circumstances before rendering a
decision.
[72]
Some recent cases suggest that decisions which
disregard submissions ought to be overturned on substantive review. The idea is
that decisions which do not address the relevant issues or evidence are
unreasonable.
[73]
In Berberi, above, at para 24, Justice
Manson found that
…there is very little in the section 40/41
Report of the Commission to support any reasonable finding that the Commission
turned its mind to any of the underlying reasons for the complaint, or that the
grievance process did in fact even deal with the applicant’s complaints.
[74]
On the strength of this finding, Justice Manson
concluded that the Court’s intervention was warranted. But this was not because
he viewed the decision as procedurally unfair – rather, at para 25, he
concluded that “the reasons provided by the Commission
through its investigator were not justified, transparent or intelligible”.
[75]
Similarly, in Khapar, above, at para 78,
Justice Kane accepted that “the Commission’s reasons
must leave the complainant with the impression that it considered his
allegations before rejecting them”. However, this figured in her
analysis of the decision’s reasonableness, as opposed to its fairness.
[76]
I note, however, that in Sketchley FCA,
Justice Linden declined to conduct substantive review altogether upon finding
that an investigation lacked thoroughness: see para 125. This, in my view,
remains the correct approach. It is not necessary to modify it in light of the
Supreme Court’s decision in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland
Nurses]. What the Supreme Court held in that case is that inadequate
reasons, by themselves, do not suffice to quash a decision that otherwise finds
reasonable support in the record before the Court.
[77]
In the case at bar, and others which are similar
to it, a breach of procedural fairness will not be found simply because the
Commission has offered reasons which are inadequate in the sense that they are
brief or do not appropriately reference certain pieces of evidence. A breach of
procedural fairness occurs when the Commission (or its investigator) clearly ignores
the submissions made by a complainant.
[78]
Reasons which omit any mention of these
submissions might constitute evidence that they were ignored, yet the
procedural flaw remains the fact that the decision-maker ignored submissions –
not that he issued reasons of a poor quality. This procedural flaw might be
proven through other means, although reference to the reasons will probably be
the easiest method in most cases. In any event, this is a meaningful
distinction between procedure and form, which allows the Court to reconcile Sketchley
FCA with Newfoundland Nurses.
[79]
Turning to the facts of this case, the applicant
has made out her allegation of procedural unfairness. The investigator’s
report, which also stands as the Commission’s reasons, convincingly illustrates
that her various submissions were ignored.
[80]
When answering questions sent to her by the
Commission, the applicant explained that the employer never addressed one of
her human rights issues – whether the Treasury Board directive is
discriminatory – in its three responses to her grievances. Despite this, the
investigator found that the grievance process had resolved all of the issues
raised by the applicant.
[81]
A cursory reading of these responses shows that
the applicant is correct. The first and second responses – which are worded
similarly – state that the employer did not discriminate against the applicant
because its actions were “fully in accord” with
the impugned policy. Likewise, the third response dismisses the complaint on
the basis that “the Employer respected the intent” of
the policy and “applied the Policy correctly”. The grievance
adjudicators never entertained the idea that the policy might be
discriminatory, and so that respecting it and applying it correctly might
amount to discrimination. The situation is analogous to that in the Sketchley
cases, where the investigator misapprehended the nature of a complaint
alleging that a similar policy was discriminatory. Since the applicant clearly
pointed to this distinction in her submissions, the Court can only reckon that
the investigator did not give them any consideration.
[82]
In addition, I reject the respondent’s argument
that either the grievance adjudicators or the investigator implicitly
considered the Hydro-Québec decision. Although the Court owes deference to administrative
decision-makers, it need not pretend that they applied jurisprudence which they
did not cite in their decisions. The Court can not impute ideas to
decision-makers in the absence of any evidence. Moreover, Hydro-Québec
addressed the question of undue hardship in workplace accommodation – not the
question of whether policies such as the one at issue are discriminatory. The
respondent misconstrues the applicant’s complaint. Hydro-Québec has not overturned the Sketchley cases on the actual issue
before the Court.
[83]
I observe that neither the grievance
adjudicators nor the investigator reproduced or commented upon the text of the
policy. That text is not even before the Court because it was never addressed
at all in the decisions below. The task of the Court is not to determine
whether the policy – of which it has no direct knowledge – is discriminatory.
It is to determine whether the administrative decision-makers turned their mind
to it. Plainly they did not.
[84]
In fact, the investigator wrote that the
allegation that the policy is discriminatory was not originally contained in Ms
Carroll’s complaint. However, the first paragraph of her complaint states in
plain English: “I believe that Service Canada’s use of
the Treasury Board’s Directive on Leave and Special Working Arrangements is
discriminatory against people with Disabilities”. It is difficult to
understand how this statement could be misunderstood. The investigator either
did not read it or read it so carelessly that he did not understand it. In Sketchley
FCA, at para 122, misapprehension of a complaint was found to constitute a
lack of thoroughness which justifies judicial review.
[85]
The problems did not end when the investigator
completed his duties. The applicant submitted six pages of argument in reply,
pointing to blatant errors in the report and citing relevant case law (Berberi).
This had no effect on the Commission, which simply endorsed the report and
dismissed the complaint. In these circumstances, it would appear that the Commission
utterly ignored the applicant’s submissions. That evinces want of thoroughness:
Herbert, above, at paras 26 and 30-31. This flaw compounds the previous
flaws and renders the decision untenable.
[86]
I pause to note that the present case is
distinguishable from Bergeron, where Justice Zinn found that the
Commission did not err by failing to consider an allegation that another
Treasury Board policy was discriminatory. He explained, at para 42, that he
came to that conclusion because the applicant did not “seriously
pursue” the question in that case. Here, Ms Carroll made repeated
submissions on the question in her second and third level grievances, in her
complaint form to the Commission and in her reply submissions to the section
40/41 report.
[87]
In passing, I do not accept the applicant’s
suggestion that the Commission should have afforded her an oral hearing before
endorsing the report – just as I reject the respondent’s argument that she
should have sought the opportunity to submit further reply submissions. The
problem is not that the Commission did not receive submissions from the
applicant: it received several and they were strong. The problem is that the
Commission plainly disregarded these submissions. It is far from certain that
the Commission would have given greater weight to oral submissions when it
could already find everything that could have been said in the written record
before it.
[88]
For the above reasons, the decision was rendered
unfairly. It must be quashed for this reason. However, I will now show that the
decision is also unreasonable. And so even if there is some error in my
analysis of procedural fairness, the decision cannot be permitted to survive.
B.
Did the Commission err by finding the complaint
to be vexatious?
[89]
The investigator committed several reviewable
errors when he concluded that the complaint was vexatious. Taken alone or in
combination, they render the decision unreasonable.
(1)
The degree of deference
[90]
Before reviewing this decision, I believe that
something must be said about the level of deference owed to the Commission.
Although Dunsmuir established a single standard of reasonableness for
judicial review, it is settled law that the application of this standard is
sensitive to context. Sometimes only one administrative outcome is rationally
defensible; at other times, two or more outcomes could be justified. In
practice, different situations call for a different degree of probing into the
decision-maker’s reasons.
[91]
Indeed, in Khosa, above, at para 59,
Justice Binnie stated that “[r]easonableness is a
single standard that takes its colour from the context.” In Mills v Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436 at para 22,
Justice Rouleau commented on the Dunsmuir standard of reasonableness as
follows:
Applying the reasonableness standard will
now require a contextual approach to deference where factors such as the
decision-making process, the type and expertise of the decision-maker, as well
as the nature and complexity of the decision will be taken into account.
[92]
There is some inconsistency in the jurisprudence
about the appropriate degree of deference in cases such as this. On the one
hand, the law is settled that the Commission should only decline to deal with a
complaint in “plain and obvious” cases at the screening
stage: Canada Post Corp v Canada (Canadian Human Rights Commission),
[1997] FCJ No 578 (TD) at para 3, aff’d [1999] FCJ No 705 (FCA), cited in Khapar,
above, at para 46. In Sketchley FCA, above, at paras 79-80, the Court of
Appeal explained that decisions to dismiss have a final impact on the parties’
rights, unlike decisions to refer complaints to the Tribunal – where they may
be upheld or dismissed after adjudication. Because a dismissal decision is
final, the Court instructed, at para 80, that it “should
be subject to a less deferential standard of review”. Admittedly, this
statement was made before Dunsmuir, when there were three standards of
review. Yet the idea of limited deference is consistent with the “plain and obvious” test, which remains good law.
[93]
On the other hand, the jurisprudence suggests
that these decisions deserve broad deference because they are discretionary. Hérold
and Khapar both involved complaints whose dismissal was justified under
paragraph 41(1)(d). In Hérold, at para 32, Justice Rennie stated that
paragraph 41(1)(d) vests “discretion” in the
Commission. For this reason, he wrote at para 33 that “Parliament
did not intend the Court to intervene lightly in the [screening] decisions of
the Commission”. In a similar vein, Justice Kane stated the following in
Khapar, at para 47:
However, section 41 of the Act confers on
the Commission ample discretion to decide when not to deal with a complaint at
the 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.
[94]
In my view, this inconsistency can be resolved
to some extent by clarifying that not every aspect of a screening decision
involves the exercise of discretion. It must be kept in mind that it is not
subsection 41(1) but rather subsection 44(3) of the Act which confers a
screening power to the Commission.
[95]
How then does subsection 44(3) operate?
Paragraph (b) states that the Commission may dismiss a complaint if it is
satisfied either “that, having regard to all of the
circumstances of the complaint, an inquiry into the complaint is not warranted”
or “that the complaint should be dismissed on any
ground mentioned in paragraphs 41(1)(c) to (3)”.
[96]
This power is discretionary because the
Commission may elect to dismiss a complaint which does not fall within any of
the categories set out in paragraphs 41(1)(c) to (e). In theory, it is arguable
that the power to dismiss a complaint which has been found to fall within these
categories is also discretionary – so that the Commission might, for example,
decide against dismissing a vexatious complaint.
[97]
These decisions are also discretionary because
the Commission must consider a host of factors and weigh them. This is a
case-by-case exercise whose methodology is not set in stone. As such, the law’s
demand that the Commission exercise this discretion to dismiss non-vexatious
complaints only in “plain and obvious” cases is
intelligible. However, the idea that the Commission should exercise discretion
to determine whether a complaint is plainly and obviously vexatious is
less easy to comprehend.
[98]
Indeed, in order to use its power to filter out
a complaint under the second branch of paragraph 44(3)(b), the Commission must
have previously found a complaint to fall within one of the categories listed
under subsection 40(1).
[99]
I limit the following comments to a finding of
vexatiousness under paragraph 40(1)(d). When deciding whether a complaint is
vexatious, it seems to me that the Commission does not exercise any discretion.
Rather, it applies a set of legal standards to the facts before it. For
instance, it must query whether the complaint is malicious or abusive. These
are questions of mixed fact and law, not questions calling for discretion. Once
the Commission has answered the question of whether a complaint is vexatious,
it must then exercise its discretion to dismiss or refer that complaint,
pursuant to subsection 44(3). Accordingly, a non-vexatious complaint may still
be dismissed.
[100] I draw a simple analogy with immigration law to illustrate the
difference between discretionary and non-discretionary decisions. When deciding
whether an individual is a Convention refugee, an immigration officer does not
exercise discretion. He applies fixed legal tests to the facts. His decision
might deserve deference but it cannot be called discretionary. By contrast, an
immigration officer reviewing a humanitarian and compassionate application for
permanent residence must exercise discretion. There are no settled rules that
he must apply mechanically when weighing the various relevant factors.
[101] In the same way, the Commission does not exercise discretion when
deciding whether a complaint is plainly and obviously vexatious. However, it
does exercise discretion afterwards, when deciding whether dismissal or
referral would better serve the interests of justice.
[102] In this case, the Commission found that “it
is plain and obvious that this complaint is vexatious”. In my view, this
issue should be reviewed on the standard of reasonableness just like any other
mixed question of fact and law.
(2)
The Meaning of Vexatiousness
[103] The investigator’s report attributes the following meaning to
vexatious complaints:
The Commission can refuse to deal with a
complaint if an independent decision-maker has already addressed the human
rights issues. Section 41(1)(d) of the Act calls such complaints “vexatious”.
[104] The investigator conceded that the applicant did not file her
complaint to “annoy, embarrass or harass the respondent”.
Yet he still found that the complaint was vexatious because her allegations had
been “fully addressed through the other grievance
process”.
[105] I take issue with this finding. The following definition of “vexatious” can be found in Black’s Law Dictionary,
9th ed (St Paul, MN: Thomson Reuters, 2009):
(Of conduct) without reasonable or probable
cause or excuse; harassing; annoying.
[106] The same dictionary defines a “vexatious
suit” as follows:
A lawsuit instituted maliciously and without
good grounds, meant to create trouble and expense for the party being sued.
[107] These definitions accord with the common legal understanding in Canada that a proceeding must be brought for malicious or otherwise inappropriate reasons
in order to qualify as vexatious. Since the applicant did not have any
intention to “annoy, embarrass or harass the respondent”,
the investigator’s conclusion that her complaint was plainly and obviously
vexatious is unreasonable.
[108] The case law on subsections 41(1) and 44(3) of the Act lends support
to this view. In Khapar, above, at para 98, this Court stated: “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.”
[109] In Barrette – a case cited by the investigator – the Federal
Court of Appeal merely contemplated that a complaint might attract paragraph
41(1)(d) if the complainant had previously used a grievance process. At para
28, it ordered the Commission to turn its mind to the issue, without deciding
the matter. As such, Barrette does not classify all complaints that were
previously dealt with by way of grievances as vexatious. Every case calls for
its own analysis.
[110] Interestingly, in many cases where this Court upheld the
Commission’s decision to dismiss a complaint under paragraph 41(1)(d), the
complainant had behaved maliciously or abusively. In Hérold, the
applicant had created toxic relationships with most of the people at her
workplace and the investigator found no evidence of discrimination. The fact
that the applicant then sought over 15 million dollars in damages in her
judicial review application buttresses the Commission’s finding that her
complaint itself was vexatious. Similarly, in Khapar, the applicant had
been given multiple opportunities to raise human rights concerns in prior
proceedings, yet he failed to do so without explanation. He only approached the
Commission once these other avenues had failed, in order to get another chance
at a favourable decision. The Court clearly thought that his tactics were
abusive.
[111] In sum, the investigator adopted an unreasonable definition of the
term “vexatious” and applied it to Ms Carroll’s
complaint. Common legal usage and the case law on the Act make it impossible to
reconcile his finding that Ms Carroll did not file her complaint for
inappropriate reasons with his determination that it was vexatious. This error
alone renders the decision unreasonable. Yet even if the investigator were
permitted to rely on such a definition, the decision would still be deficient.
(3)
The Principle of Finality
[112] Proceeding from the assumption that a complaint can be dismissed as
vexatious simply because it has been dealt with through another process, I turn
to the question of whether the investigator could reasonably determine that “the complainant’s human rights allegations have been
addressed by an alternate decision maker with authority to consider human
rights issues”. According to the investigator, this meant that the
complaint should be dismissed so as to “respect the
finality of that decision”. In my view, this conclusion is unreasonable
in light of the law and the evidence.
[113] To begin, the investigator cited two recent Supreme Court cases, Figliola
and Penner. Therein two camps of Supreme Court justices conducted a
lively debate about the principle of finality in the context of administrative
decisions. It is worth delving into the particulars of each case so as to learn
the right lessons.
[114] In Figliola, all nine justices agreed in the result, yet
there was a marked methodological disagreement between the majority and the
concurrence. The facts were as follows. The complainants had initially brought
their cases to the British Columbia Workers’ Compensation Board. Unsatisfied
with the outcome, they filed an internal review which was dismissed by a Review
Officer. The complainants could not file a further internal appeal due to a
legislative amendment. However, they could have sought judicial review of the
Review Officer’s decision. They did not do that. Instead, they filed fresh
complaints at another tribunal – the Human Rights Tribunal – which accepted to
hear them over the employer’s objection. The British Columbia Human Rights
Code, RSBC 1996, c 210, granted the Tribunal a power to screen out complaints
that had been “appropriately dealt with in another proceeding”.
[115] According to the majority, at paras 24-25, this legislation
reflected three common law doctrines of finality: issue estoppel, collateral
attack and abuse of process. However, a decision-making body does not have to
apply any one of these doctrines in a technical fashion. Rather, it should ask
three questions, listed at para 37, and decline to hear the complaint if they
are all answered in the positive: (1) Did the alternate decision-maker have
concurrent jurisdiction to decide the issues? (2) Were the previously decided
legal issues essentially the same? and (3) Was there an opportunity for the
complainants or their privies to know the case to be met and to have the chance
to meet it? The purpose of dismissing complaints that were dealt with in this
sense is to ensure “territorial respect” between
various tribunals, so as to avoid unnecessary relitigation of similar issues
before different decision-makers: see paras 38-46.
[116] The concurring justices disagreed with the majority’s
characterization of the purpose of the common law finality doctrines. In their
view, these doctrines aim to strike a balance between the twin objectives of
finality and fairness through the exercise of discretion. As Justice Cromwell
wrote at para 58, “Finality is one aspect of fairness,
but it does not exhaust that concept or trump all other considerations”.
In his view, the legislation conferred a broad discretion to the Tribunal,
which should be exercised to avoid injustice. However, it was unreasonable for
the Tribunal to accept the complaints in the circumstances of the case.
[117] In Penner, the Figliola concurrence became the
majority and the Figliola majority became the dissent. Penner was
not about two competing tribunals but about the relationship between an
administrative decision and a civil action. Mr Penner had alleged misconduct on
the part of police officers and initiated disciplinary proceedings against
them, which were ultimately dismissed. He also instituted a civil action
against them. Relying on the disciplinary decision, the Ontario Superior Court
of Justice employed the doctrine of issue estoppel to strike out most of his
statement of claim.
[118] The majority of the Supreme Court endorsed the framework for issue
estoppel set out in Danyluk v Ainsworth Technologies Inc, 2001 SCC 44.
Even if the criteria for issue estoppel are found to exist, courts retain the
discretion to refuse to apply the doctrine so as to prevent unfairness.
Unfairness can arise either from the conduct of the prior proceedings, or from
using their results in the subsequent proceedings: see paras 39-48. At para 49,
the majority found that the disciplinary process was fair but that importing
its results to the civil action would be unfair, since these two proceedings
were significantly different in purpose and scope. Furthermore, the first-level
decision-maker in the disciplinary process had been appointed by the Chief of
Police. At para 66, the majority claimed that allowing him to exonerate the
Chief from civil liability would amount to transforming the Chief of Police
into “the judge of his own case” and constitute “a serious affront to basic principles of fairness”.
[119] By contrast, at paras 75-76, the dissent stated that Figliola
signalled a move away from Danyluk, so that curial discretion should be
exercised only rarely. Otherwise, issue estoppel becomes a “free-floating inquiry” into the conduct of
administrative tribunals and undermines the finality of their decisions: see
para 78. The dissent did not see finality and fairness as competing values. In
fact, at para 99, it stated that the function of issue estoppel is to achieve
fairness by protecting finality.
[120] The investigator’s report is unreasonable in view of these
decisions. To begin, none of the four sets of reasons suggest that finality
prevents a decision-maker from considering a complaint just because another
decision-maker previously considered a complaint between the same parties. Even
the Figliola majority – which adopted a stricter view of finality than
the Penner majority – affirmed that finality applies only when the “previously decided legal issue” is “essentially the same as what is being complained of to the
Tribunal”: Figliola, above, at para 37.
[121] During the grievance process, Ms Carroll complained that the
Treasury Board policy is discriminatory. However, as was explained in my
discussion of procedural fairness, the three grievance replies did not decide
this issue. Consequently, there is no decision to the complaint to which the
Commission is entitled to defer.
[122] Paragraph 40(1)(d) of the Act is not an escape hatch permitting the
Commission to shirk its obligations simply because some other institution had a
first look at a complaint, regardless of how it approached it. Once again, I
draw attention to the Sketchley cases, which clearly recognize that a
complaint that a policy is discriminatory is different from a complaint that
specific actions by the employer are discriminatory.
[123] The respondent contends that this Court upheld a similar decision as
reasonable in Panula. However, in that case the complainant alleged that
he had been harassed in the workplace and terminated in a discriminatory
fashion. He did not allege that the employer had applied a discriminatory
policy against him. It is true that the Commission dismissed his complaint as “frivolous” because it found that he was terminated
after 7 years of sick leave, that there was no prospect that he would return to
work in the foreseeable future and that “the offer of
medical retirement amounted to reasonable accommodation”: see para 15.
It is unclear whether the Court endorsed this rationale.
[124] The case at bar is distinguishable from Figliola because Ms
Carroll could not seek judicial review of the final grievance decision. Nor could
she bring an appeal to the PSLRB without her union’s approval: see subsection
209(2) of the Public Service Labour Relations Act, SC 2003, c 22, s 2.
Consequently, there is no issue of “territorial respect”
between competing tribunals, as in Figliola, above, at para 38.
[125] It is true that the Commission would be looking behind the
employer’s decision-making process by investigating the complaint. Although I
do not agree with the applicant that this process necessarily lacks
independence, I also believe that it is troubling for the Commission to
reflexively defer to it. Ms Carroll has been waiting for an answer to her
question of whether the impugned policy is discriminatory for over three years
now. Adjudicators appointed by the employer refused to answer the question and
she could not bring further internal appeals. By deferring to their decisions, the
Commission risks jettisoning its all-important mandate “to
give effect, in the federal sphere, to the principle that all should be able to
make for themselves the lives thay are able to and wish to make, without being
hindered or prevented by discriminatory practices”: Davis FC,
above, at para 15.
[126] Finally, it is clear that Penner takes precedence over Figliola.
As such, decision-makers retain residual discretion to refuse to give effect to
the principle of finality where that would work unfairness. The Penner
majority espoused this view and the Figliola majority never clearly said
that finality must override fairness. And so, even if the substance of a
complaint has been appropriately addressed in another process, the Commission
must exercise its discretion under subsection 44(3) of the Act to decide
whether to refer the complaint to the Tribunal.
[127] Here, there is no evidence that the Commission ever gave thought to
exercising that discretion. It did not grapple with the issue of whether
dismissing the complaint might be unfair to Ms Carroll. In particular, it did
not consider whether allowing adjudicators appointed by the employer to have
the final say might turn the employer into the “judge
of his own case”: Penner, above, at para 66. To use a classic
term, the Commission seems to have fettered its discretion in the belief that a
complaint which has been dealt with elsewhere simply must be dismissed. The law
is clear that a decision-maker which fetters its discretion behaves
unreasonably: see e.g. Stemijon Investments Ltd v Canada (Attorney General),
2011 FCA 299 at paras 22-25.
(4)
More Errors
[128] Before concluding, I wish to draw attention to two additional errors
which contribute to the unreasonableness of the decision under review.
[129] First, the investigator found that the issues raised by Ms Carroll
had been decided by a decision-maker with the authority to interpret and apply
the Act. This was one of the factors which led him to recommend deferring to
the previous process. However, subsection 226(6) of the Public Service
Labour Relations Act grants this power to adjudicators at the PSLRB – not
to adjudicators appointed by the employer to review grievances beforehand. Here,
the applicant’s union did not refer her grievance to the PSLRB, so that the
decision-makers who dealt with it did not have any explicit statutory power to
interpret and apply the Act.
[130] Second, the investigator indicated that the employer was not the
proper party to the complaint because the impugned policy had been crafted by
the Treasury Board. This statement is unreasonable because the employer clearly
applied the Treasury Board policy to Ms Carroll. Consequently, she is entitled
to complain that the employer discriminated against her by applying a
discriminatory policy, regardless of its source.
VII.
Remedy
[131] I grant this application for judicial review with costs to the
applicant. The parties have agreed that a lump sum award of $1500 is
appropriate.
[132] I asked the parties to provide post-hearing submissions on the
question of whether I should return the matter to the Commission with
directions. Upon reading their submissions, I have decided to exercise my
discretion to issue directions pursuant to paragraph 18.1(3)(b) of the Federal
Courts Act.
[133] The respondent correctly submits that the Court should only issue
directions in the “clearest of circumstance”
(see e.g. Canada (Minister of Human Resources Development) v Rafuse,
2002 FCA 31 at para 14). The respondent further submits that directions are
inappropriate in this case because the dispute between the parties is
essentially factual and there is no one clear answer on the face of the record.
[134] The record is not incomplete on the question of whether Ms Carroll’s
complaint is vexatious. The investigator made a finding of fact, amply
supported by the evidence, that Ms Carroll did not file her complaint to “annoy, embarrass or harass” her employer. As I
explained above, it is impossible to reconcile this finding with the conclusion
that her complaint is vexatious. Such an outcome is barred by the meaning of
the word “vexatious” and the fact that the
grievance reply letters never addressed the human rights issues central to the
complaint, as becomes obvious on a plain reading of those documents.
[135] The inevitable answer, on the face of the record, is that the
complaint does not fall into any of the categories listed at paragraphs 41(c)
to (e) of the Act. The complaint is not beyond the Commission’s jurisdiction;
it is not trivial, frivolous, vexatious or made in bad faith; and it is not
time-barred.
[136] By issuing directions, the Court will not usurp the Commission’s
fact-finding role. It will simply prevent another potential decision that
cannot be supported by the facts, thereby reducing expense and delay for both
parties. For these reasons, the Court will direct that the Commission shall not
dismiss the complaint pursuant to subparagraph 44(3)(b)(ii) of the Act.
[137] This does not mean that the Commission must refer the complaint to
the Tribunal. As in Berberi, the Commission will have to investigate the
complaint anew and decide whether to refer it to the Tribunal or to dismiss it
pursuant to subparagraph 44(3)(b)(i) of the Act. In making this decision, the
Commission must rely on the full record concerning the applicant’s grievances
and its own consideration of the merits of those grievances.
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