Docket: T-1832-14
Citation:
2015 FC 989
Toronto, Ontario, August 19, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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VIA RAIL CANADA
INC.
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Applicant
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and
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MARCIA CANNON
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of a
decision [Decision] of the Canadian Human Rights Commission [Commission] dated
July 16, 2014, in which the Commission determined that it would address a
complaint [Complaint] filed by the Respondent, who alleges she suffered adverse
differential treatment in the provision of a service offered by VIA Rail Canada
Inc. [VIA, the Applicant].
II.
Facts and Procedural Background
[2]
The Respondent, who identifies as a
transgendered person, initially contacted the Human Rights Commission in April
2012 regarding an incident in a London, Ontario VIA station washroom, whereby a
VIA employee allegedly acted in a discriminatory manner inconsistent with the Canadian
Human Rights Act, RSC 1985, c H-6.
[3]
The focus of this judicial review is the
procedure with which the Complaint has thus far been handled, and not with the
merits of the Complaint.
[4]
In general, the Applicant argues that it entered
a process of Preventive Mediation under false pretenses, and was unfairly
misled in an alternate dispute resolution [ADR] process, by both the Respondent
and the Commission.
[5]
VIA advised the Commission on October 23, 2012
that it wished to engage in Preventive Mediation. This request was, according
to the evidence before me, based on the fact that (i) it had not been served
with a complaint, and (ii) the purpose of the mediation was an attempt to
resolve the matter, thereby avoiding the complaint process.
[6]
The Preventive Mediation Agreement, signed by
all parties before the first of these ADR sessions on December 13, 2013,
states:
“The participants have agreed to meet
voluntarily to attempt to resolve certain issues of concern between them. The
Commission is providing mediation services to help the participants resolve the
issues quickly and informally. The participants understand that no complaint
has been filed with the Commission under the Canadian Human Rights Act.
…
8. If the matter is not resolved at
mediation, the participants understand that [sic] will have the right to file a
complaint under the Canadian Human Rights Act. Participants are aware that,
under section 41(e) of the Act, the Commission can refuse to deal with
complaints filed more than one year after the date of the alleged
discrimination.” (Applicant’s Record [AR], at pages 45-46) (Emphasis added)
[7]
At the conclusion of both the first and second
Preventive Mediation sessions, held on December 13, 2012 and April 15, 2013
respectively, the Respondent asked for further time to engage in mediation. On
both occasions, the evidence is that the Respondent’s legal representative
alluded to the prescribed one-year limit for the filing of a complaint under
the Act and asked for more time to mediate, notwithstanding the
impending expiry of the time limit. On the second occasion, at the conclusion
of the April 15, 2013 mediation session, the Respondent’s representative
alluded to the imminent expiry on April 22, 2013 of the time for filing a
complaint (AR, pages 18-19).
[8]
The parties followed up a verbal agreement to
withhold a complaint regarding the timeliness of a filing via an exchange of
emails dated April 15, and May 8, 2013. This exchange confirmed VIA’s
undertaking to desist from objecting to the filing of a complaint, provided
such a complaint was filed on or prior to June 30, 2013 (AR, at pages 49 and
51).
[9]
The parties were ultimately unable to come to a
resolution of the matter through Preventive Mediation.
[10]
The negotiated June 30, 2013 deadline came and
went without the filing of a complaint with the Commission. However, on August
6, 2013, the Commission served VIA with a copy of the Respondent’s Complaint,
stating the Commission had received the Complaint on August 1, 2013 (AR, pages
56-58).
[11]
On September 6, 2013, VIA objected to the
Commission dealing with the Complaint pursuant to paragraph 41(1)(e) of the
Act, which states:
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
...
(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.
III.
Decision
[12]
On May 7, 2014, the Commission issued a Section
40/41 Report [Report] in relation to the Complaint. The Report stated that the
Complaint had been received in a form acceptable to the Commission on August 1,
2012, that it had been date-stamped by the Commission on the same date, and as
a result, no issue as to paragraph 41(1)(e) of the Act arose (AR, pages 79-80
and 83-84).
[13]
The Commission stated when it served the
Respondent’s Complaint (AR at page 84) that it would be appropriate to amend
the Summary of Complaint form to indicate that the date on which the Commission
had received the Complaint was August 1, 2012, and not August 1, 2013, as
originally stated by the Commission.
[14]
In the alternative, the Commission concluded
that if the Complaint was filed beyond the statutory time limit, the Commission
determined that it was appropriate to exercise its discretion to deal with the
Complaint in this case (AR, at page 86).
[15]
In a letter dated June 5, 2014 responding to the
Commission’s Report, the Applicant set out the reason for its disagreement with
the conclusions contained in the Section 40/41 Report, and brought to the
Commission’s attention (i) contradictory evidence demonstrating that there was
in fact no complaint filed with the Commission throughout the duration of the
mediation, (ii) the Respondent’s express representations to this effect, and
(iii) the Commission’s own assurances and representations to the same effect
(AR, at pages 89-93).
[16]
On July 16, 2014, the Commission issued its
Decision, affirming its Report’s conclusion deciding to address the Complaint.
That Decision is the subject of this judicial review.
IV.
Standard of Review
[17]
The Applicant submits that the Commission
breached its obligations of procedural fairness and legitimate expectations in
finding that it had previously accepted the Respondent’s Complaint for inquiry
under section 40 of the Act, despite prior assurances to the parties that no
complaint had been so accepted. The appropriate standard to apply to questions
relating to the Commission’s failure to observe the principles of natural
justice or procedural fairness is the standard of correctness. The same
standard of correctness also applies to the second ground of review, namely
whether the Commission failed to identify the proper test in exercising its
discretion to deal with a late-filed complaint (Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, para 43; B074 v Canada
(Citizenship and Immigration), 2013 FC 1146 at para 24).
V.
Analysis
[18]
The Commission is required to conduct its
investigations at the preliminary stage of the complaint process in a manner
that is both neutral and thorough in order to discharge its procedural fairness
obligations (Hebert v Canada (Attorney
General), 2008 FC 969 at
para 18 [Herbert]).
[19]
The Applicant, as explained above, was led to
believe that no complaint had been filed with the Commission at the time it was
involved in alternate dispute resolution proceedings. The Commission provided a
chance for the Applicant to relay its concerns, which VIA did in detail in its
14-page June 5, 2014 letter. However, the Commission either ignored or
overlooked them in the Decision. This Court has previously found that
overlooking significant discrepancies to be problematic:
[26] …However,
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…” (Hebert at para 26)
[20]
In my view, it was procedurally unfair for the
Commission to have indicated that it had not accepted a complaint, which
understandably led VIA to act in accordance with this position, and then subsequently
turn around and assert a diametrically opposite position (Huggins v Canada
Post Corp, 2005 FC 665 at para 18; Centre hospitalier Mont-Sinaï c
Québec (Ministre de la Santé et des Services sociaux), 2001 SCC 41, paras
101-117).
[21]
Finally, VIA argues that when exercising its
discretion to extend the time for dealing with a late-filed complaint, the
Commission is required to ensure that a complaint is worth investigating. Given
my concerns on the procedural fairness of this case, I did not need to address this
argument.
VI.
Remedy
[22]
At the hearing, the Applicant asked that the
Court render an Order in the nature of a directed verdict, because it would be
pointless to remit the matter back to the Commission (Giguère v Chambre des
notaires du Québec, 2004 SCC 1 at para 29 [Giguère]; Pictou
Landing Band Council v Canada (Attorney General), 2013 FC 342 at para 120 [Pictou].
[23]
VIA’s counsel acknowledged this remedy had not
previously been a focus of the pleadings. I therefore provided both parties the
opportunity to submit post-hearing submissions solely on the issue of remedy.
Both parties subsequently filed written submissions on remedy, which I have
carefully considered.
[24]
The Applicant argues that whether one applies
the test set out in case law (Giguère, Pictou), or the relief provided
in our primary statute (section 18.1(3)(b) of the Federal Courts Act (RSC,
1985, c F-7)), only one interpretation or conclusion is possible: that there
would be no useful purpose to return the matter back to the tribunal (see also Canada
(Attorney General) v Cruden, 2013 FC 520 at para 85).
[25]
The Respondent, not surprisingly, argues the
opposite. Ms. Cannon first states that procedurally, the Applicant should be
precluded, pursuant to Rule 301(d) of the Federal Court Rules, in
seeking relief not set out in the pleadings (J.P. Morgan Asset Management
(Canada) Inc. v Canada (National Revenue), 2013 FCA 250, at para 38). The
Respondent submits that there is merit in proceeding with the investigation of
her complaint, which also has a broader public interest issue at stake. The
directed verdict would effectively stay the proceedings, and the Respondent
would lose the opportunity to have her complaints heard by the Commission (Canadian
Broadcasting Corp v Judge, 2002 FCT 319 at para 77 [CBC]).
[26]
Further, she argues that she should not be
penalized for the errors of the Commission (CBC at para 77).
VII.
Conclusion
[27]
Due to the importance of the rights at stake, I
agree with the Respondent that a directed verdict would be inappropriate in
this case (Canadian National Railway Co v Canada (Canadian Human Rights
Commission), [1987] 1 S.C.R. 1114 at p 1134). However, given my findings on
the violations of procedural fairness, I will grant the alternate remedy sought
by the Applicant. The Decision to investigate should be quashed and remitted
back to the Commission for redetermination in accordance with these reasons.
Having rectified the breach of procedural fairness outlined above, the
Commission is free to exercise its discretion over whether to move forward with
the complaint as it sees fit (Air Canada Pilots Association v McLellan,
2012 FC 591 at para 11).
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