Docket: 14-T-36
Citation:
2015 FC 539
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, April 27, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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FAOUZI BERRADA
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Moving Party
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and
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WESTJET
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Respondent
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ORDER AND REASONS
I.
Introduction
[1]
The applicant (Mr. Berrada) is seeking, by
way of an application for judicial review, to challenge a decision of the
Canadian Human Rights Commission (the Commission) dismissing the complaint he
had filed against the respondent (WestJet) in relation to an incident that had
taken place on an aircraft operated by that airline. Because his application
was not filed within the 30-day time limit set by section 18.1 of the Federal
Courts Act, Mr. Berrada is seeking an extension. The respondent opposes
the extension.
[2]
For the following reasons, the motion for an
extension of time is denied.
II.
Background
[3]
On March 19, 2012, the applicant, who was
in Montreal, boarded WestJet flight 453 to Edmonton. During a stopover in
Toronto, during which passengers were required to remain on board the aircraft
while waiting for passengers in transit, Mr. Berrada asked a flight
attendant whether he could move into the empty window seat next to him. The
flight attendant said yes, but a few minutes later, a passenger in transit
arrived and told the applicant that the window seat was his. Mr. Berrada
tried to explain to him that he had been given permission to take the seat. It
was no use. Mr. Berrada, a francophone Muslim, then approached two members
of the cabin crew to tell them about the incident and ask for a new seat to
avoid any confrontation with the other passenger.
[4]
However, they had difficulties communicating. The
discussion began in French, in which none of the crew was fluent, and continued
in English, which was spoken poorly by Mr. Berrada. The situation
escalated. What Mr. Berrada presents as a balanced and respectful attempt
to change seats was perceived by the cabin crew as disruptive. Mr. Berrada
was ultimately removed from the aircraft on the basis that he had become, in
the eyes of the cabin crew, an “unruly passenger”
within the meaning of WestJet’s passenger safety policies.
[5]
In September 2012, believing that he had been
discriminated against based on race, ethnic origin, religion and language,
Mr. Berrada filed a complaint with the Commission. After a failed attempt
at mediation, the complaint was referred to the Commission’s Investigations
Division.
[6]
On January 21, 2014, the Commission
provided the parties with the investigation report. The report concluded that
the investigation had revealed no information indicating that Mr. Berrada’s
race, colour, religion, or national or ethnic origin were factors in the
incidents resulting in his expulsion from the aircraft. The investigator
summarized his understanding of the facts as follows:
17. The complainant sat in a seat that
was not his. The holder of the ticket for that seat claimed it. The complainant
took offence, became agitated, spoke of violence and demonstrated to the flight
attendants that he was unfit to fly. The flight attendants called the police to
have him removed.
[7]
The investigator recommended that the Commission
dismiss Mr. Berrada’s complaint on the basis that, having regard to all
the circumstances, an inquiry into the complaint by the Canadian Human Rights
Tribunal (the Tribunal) under section 49 of the Canadian Human
Rights Act (the Act) was not warranted.
[8]
On May 9, 2014, the Commission, having
reviewed the investigation report and the parties’ comments on the report,
adopted its investigator’s recommendation and dismissed Mr. Berrada’s
complaint.
[9]
Mr. Berrada did not become aware of this
decision until July 9, 2014, when he returned from a two-month stay in
Morocco. A week later, on July 16, 2014, he filed this motion for an
extension of time.
III.
Issue
[10]
The issue is whether this motion for an
extension of time should be granted. The test for this type of motion is well
established (Canada (Attorney General) v Hennelly, 244 NR 399,
[1999] FCJ No 846 (QL) [Hennelly] at para 4). Mr. Berrada must
establish (i) a continuing intention to pursue the application;
(ii) that the application has some merit; (iii) that no prejudice
arises from the delay; and (iv) that a reasonable explanation for the
delay exists.
[11]
WestJet concedes that Mr. Berrada has
established his continuing intention to contest the Commission’s decision and
that the delay has not subjected it to any prejudice. However, it argues that
the contestation of the Commission’s decision has no reasonable chance of
success and that Mr. Berrada did not provide a reasonable explanation for
the delay.
[12]
As the parties have observed, the test must be
applied with some flexibility to ensure that “justice
is done between the two parties” (Canada (Attorney General) v Pentney,
2008 FC 96 at para 34; Canada (Attorney General) v Larkman,
2012 FCA 204 at para 85). Concretely, this means that the weight to
be assigned to each factor may vary depending on the circumstances of each case.
It also means that the power to grant an extension of time remains
discretionary in nature, and the four factors, while providing a framework for
the exercise, are not intended to fetter it (Pentney, above, at
para 35; Larkman, above, at para 62).
IV.
Analysis
A.
Justification for delay
[13]
On May 9, 2014, when the Commission
rendered its decision, Mr. Berrada was on vacation in Morocco. In the
affidavit he filed in support of this motion, he explained that, having no idea
how long it would take for the Commission to render its decision, he planned to
take a vacation from April 22 to July 8, 2014. He said that he
had left Edmonton, his city of residence, on April 23, stopped over in
Montreal for one week and boarded a plane for Morocco on May 1. He
explained that he had returned on June 29 and, after another stay in
Montreal, had arrived in Edmonton on July 9. Mr. Berrada states that
one of the main reasons he spent so much time in Morocco was to visit and care
for his ailing mother.
[14]
The affidavit also states that on July 9,
2014, upon Mr. Berrada’s return to Edmonton, the superintendent of the
building where he lived gave him the envelope containing the Commission’s
decision. The Court record shows that Mr. Berrada filed this motion a few
days later, on July 16, 2014.
[15]
WestJet argues that this explanation is
inadequate. It is of the view that because it was reasonable to believe that
the Commission might render its decision while he was away from his residence,
Mr. Berrada should have made arrangements with a trustworthy individual
who could have at least informed him of the delivery of the Commission’s letter
while he was in Montreal or Morocco. According to WestJet, the fact that he
failed to take this precautionary measure weighs against granting the extension
of time.
[16]
I disagree. Mr. Berrada acted quickly as
soon as he became aware of the Commission’s decision. That is what counts in
the circumstances. Given that he did not know when the Commission would render
its decision and had been given no indication that it would be imminent once
WestJet had stated its position with respect to the investigator’s report on
April 5, 2014, it was unreasonable to expect Mr. Berrada to remain
close to his place of residence until he had received the Commission’s letter. Even
if one were to suppose that he was required out of prudence to have somebody
survey his mail during his absence, it is unclear how he, a self-represented
applicant, could have filed a motion for an extension of time from his
location.
[17]
I am therefore of the view that there is a
reasonable explanation for Mr. Berrada’s delay in filing his motion for an
extension of time.
B.
Chance of success of Mr. Berrada’s
application
[18]
Litigants seeking an extension must establish
that the application for which it is sought has a reasonable chance of success
(Leblanc v National Bank of Canada, [1994] 1 FC 81). Obviously, he
is not required to convince the Court that his application will succeed;
however, he must do more than merely state that the decision he wishes to
challenge has no merit or repeat the grounds for review set out in
section 18.1 of the Federal Courts Act, RSC (1985),
c. F-7.
[19]
In this case, Mr. Berrada did not file, in
support of his motion for an extension, a draft application for judicial
review, which could have helped the Court understand the specific grounds for
the challenge he wishes to bring against the Commission’s decision. We must
therefore look elsewhere in the record. In his written submissions in support
of his motion for an extension, Mr. Berrada devotes a single paragraph to
this factor. That paragraph reads as follows:
10. I respectfully submit that my
application (case before the Human Rights Commission) is well founded. I
believe that the interventions of the WestJet flight attendants were justified
by a special bias [sic] of insecurity and violence based on my ethnic origin
and religious beliefs.
[20]
The other document that may shed some light on
the challenge that Mr. Berrada is planning to bring in this case is his
reply to WestJet’s response to the motion for an extension. In that document,
Mr. Berrada begins by complaining that the response had been served on him
in English, which he interprets as a tactic to cause a delay that would deprive
him of his right to a judicial review. He then recounts the incident that led
to his expulsion from the aircraft and reiterates that he was subjected to discriminatory
conduct by WestJet. In particular, he complains that the statements of the
flight attendants who met with the Commission investigator do not reflect what
really occurred, and he reiterates the difficulties he experienced in
communicating his grievances to the flight attendants on account of the
language barrier. He reiterates that he did not threaten anybody. In
conclusion, he notes that the Commission investigator did not interview him
before recommending that the Commission dismiss his complaint, emphasizes his
relatively weak position given the means available to WestJet to defend itself,
and seeks the Court’s intervention so that it might [translation] “refresh the record and
review all the details and read between the lines the important elements that
will support the applicant’s claim.”
[21]
Is it enough to establish that the application
for judicial review that Mr. Berrada wishes to bring is not doomed to
failure? I do not believe so. In this respect, it is important to define the
Commission’s role and the limits of the Court’s power to intervene when the
Commission renders a decision such as that rendered in this case.
[22]
The Act sets out a complete mechanism for
dealing with human rights complaints, and the Commission is central to this
mechanism (Cooper v Canada (HRC), [1996] 3 SCR 854 at para 48).
On receiving a complaint, the Commission, under sections 43 and
44 of the Act, appoints an investigator to investigate and prepare a
report of its findings for the Commission. On receiving the investigator’s
report, it provides copies to the parties and invites them to comment on it. It
then reviews the report and the parties’ comments and takes one of the
following steps: (i) it refers the complaint to the Tribunal if it believes an
inquiry is warranted; (ii) it appoints a conciliator; (iii) it refers the
complainant to the appropriate authority; or (iv) it dismisses the complaint if
it does not believe that an inquiry by the Tribunal is warranted (Cooper,
above, at para 49).
[23]
However, the Commission is not an adjudicative
body. In other words, it is not the job of the Commission to decide if the
complaint is made out; that is the role of the Tribunal. Rather, its duty is to
decide whether, under the provisions of the Act, an inquiry is warranted having
regard to all the facts (Cooper, above, at para 53). It has a “remarkable degree of latitude” when it is performing
its screening function, and courts do not intervene lightly in its decisions (Bell
Canada v. Communications, Energy and Paperworkers Union of Canada (C.A.),
[1999] 1 FC 113).
[24]
This means that the Court must show deference to
the Commission’s decisions regarding whether or not to refer a complaint to the
Tribunal for inquiry, intervening only when such decisions are unreasonable, in
recognition of the Commission’s specialized function and resulting expertise. The
party challenging the Commission’s decision therefore faces a heavy burden. It
must be established that the Commission’s decision falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 at para 47). In other words, it is not enough to disagree with the
decision and ask the Court to reweigh the evidence in the hope that it will reach
a difference conclusion, because that is not its role (Nekoie v Canada
(Minister of Citizenship and Immigration), 2012 FC 363, 407 FTR
63 at para 40; Thambiah v Maritime Employers Association,
2011 FC 727 at para 13; Bourassa v Canada (Department of National
Defence), 2014 FC 936 at para 68).
[25]
That is the burden that Mr. Berrada bears.
Unfortunately for him, even a generous reading of his written submissions does
not reveal a specific criticism of the Commission’s decision, let alone a
criticism that would support an argument of unreasonableness. The Commission
was of the view that the investigation had not shown that Mr. Berrada had
been discriminated against based on his race, national or ethnic origin, colour
or religion. It made this finding on the basis of its review of the
investigator’s report and the parties’ submissions regarding the content of
that report. Recall that the investigator concluded from his investigation that
Mr. Berrada had been evacuated from the aircraft because the flight attendants
judged that he was unfit to fly following the incident involving the
ticket-holder for the seat that Mr. Berrada was occupying and that this
had nothing to do with the latter’s race, colour, religion or national or
ethnic origin. To reach this finding, the investigator interviewed
Mr. Berrada, two of the flight attendants on duty at the time of the
incidents and WestJet’s Advisor, Security Operations and Investigations.
[26]
Therefore, the Commission must have reviewed the
events. In so doing, it clearly opted for the version of the facts provided by
the WestJet flight attendants. This is a finding of fact, and for the Court to
intervene, it must be persuaded that, in the words of paragraph 18.1(4)(d)
of the Federal Courts Act, it was made in a perverse or capricious
manner or without regard for the material before the Commission.
[27]
However, nothing in the written submissions
filed by Mr. Berrada in respect of his motion for an extension even
remotely points to a criticism of this nature, or even to a broad criticism of
the unreasonableness of the Commission’s decision. He merely reiterates that
his complaint is well founded, implicitly expressing his disagreement with the
Commission’s decision. As discussed above, that is insufficient (Maqsood v
Canada (Attorney General), 2011 FCA 309 at para 15).
[28]
With respect, I am of the view that
Mr. Berrada misunderstands the role that this Court can play in this case.
His reply to WestJet’s response is revealing in this respect, in that he states
that he is seeking the Court’s intervention so that it may [translation] “refresh the record and review all the details and read
between the lines the important elements that will support the applicant’s
claim.” As stated above, this is not the appropriate role of the Court
in an application for judicial review. It is not meant to reweigh the evidence
and draw the conclusions it believes the Commission should have drawn. It is
not a substitute for the Commission. Its role is to intervene to the extent
that it is convinced that the Commission’s decision not to refer
Mr. Berrada’s complaint to the Tribunal for inquiry is unreasonable.
[29]
The law is the same for all and does not vary
because a litigant chooses to represent him- or herself (Kalevar v Liberal
Party of Canada, 2001 FCT 1261, [2001] FCJ No 1721 (QL) at para 24;
Cotirta v Missinipi Airways, 2012 FC 1262 at para 13,
affirmed: 2013 FCA 280). In its present form, this motion for an extension
of time does not establish that the applicant’s application for judicial review
has a reasonable chance of success. Rather, as it stands, the application is
bound to fail.
[30]
Even though Mr. Berrada satisfies three of
the four conditions to be relieved of his failure to bring the application
within the time frame provided in the Act, the final condition, relating to the
application’s chance of success, is, in my view, the deciding factor in the
circumstances of this case.
[31]
The motion for an extension of time will
therefore be dismissed, but without costs to Mr. Berrada.
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