Docket: T-21-15
Citation:
2015 FC 1135
Ottawa, Ontario, October 5, 2015
PRESENT: The
Honourable Madam Justice Elliott
|
BETWEEN:
|
|
KATHLEEN
O'GRADY
|
|
Applicant
|
|
and
|
|
BELL CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Canadian Human Rights Commission (the Commission) dated
December 10, 2014 (the Decision). The Commission dismissed the applicant’s
complaint pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights
Act (the Act) because, “having regard to all the
circumstances of the complaint, an inquiry by a Tribunal is not warranted.”
[2]
For the reasons which follow, the application is
allowed.
I.
BACKGROUND
[3]
This is the second application for judicial
review in this matter. The background facts to the issues between the parties
are fully set out in the decision of Justice Kane dated December 7, 2012,
reported at 2012 FC 1448, and need not be repeated here other than as necessary
to explain these reasons.
[4]
Justice Kane quashed the Commission’s decision not
to deal with the complaint under subparagraph 41(1)(d) of the Act and remitted
the matter to the Commission to be re-determined on the basis that the
Applicant had negotiated a Settlement and signed an Acknowledgement relieving
the Respondent of any liability relating to her termination.
The Applicant’s
Disability
[5]
The Applicant, who has been self-represented
throughout, suffers from mental illness and was totally disabled at the time of
the events underlying her complaint. She was receiving Long Term Disability
(LTD) benefits and hoping to return to work via a rehabilitation program as
part of her LTD benefits.
[6]
After the events under consideration in the
complaint the Applicant suffered a major relapse of her illness. At the time of
the prior application and this application the Applicant was still disabled.
She is receiving benefits under the Ontario Disability Support Program.
The Complaint
[7]
The heart of the Applicant’s complaint involves
her dismissal from her position with Bell Canada while she was receiving LTD
benefits. Her job was eliminated as part of a corporate restructuring. She
was called in to a meeting on April 20, 2009, ostensibly to discuss plans for
her return to work, but instead she was advised her last day of employment
would be October 27, 2009 if she could not find a new position before then.
She was immediately removed from LTD, placed on salary continuance as an active
employee for six months, and paid a lump sum of approximately eight month’s
salary.
[8]
The Applicant’s complaint to the Commission was
filed October 27, 2010. It alleged she was discriminated against on the
grounds of disability by way of adverse differential treatment and termination
of employment. Within the complaint the Applicant provided several specific
examples ranging from lack of support by the Respondent to not being advised
her position had been eliminated until approximately one year after the fact,
when other jobs for which she might have applied had been taken by others whose
jobs were eliminated.
[9]
At the April 20, 2009 meeting the Applicant lost
her LTD benefits. The relief she has been seeking includes reinstatement of
those benefits retroactive to her last official day of employment on October
27, 2009.
[10]
It is the Applicant’s belief that had she been
treated more fairly, instead of being unexpectedly terminated at the April 20,
2009 meeting, she would eventually have been able to return to work as that had
been her goal throughout. Following her termination, the Applicant’s doctor
found that she had a major relapse of her condition causing her difficulty in
functioning. She was found to be unable to work for the Respondent or any other
employer.
The Reconsideration
[11]
On July 17, 2013, the Commission reconsidered
the complaint and decided to deal with it finding that “it
does not appear the complainant was ‘morally blameworthy’ when she filed the
complaint” and “the complaint was not made in
bad faith”.
The New
Investigation
[12]
On July 23, 2013, the Commission referred the
Applicant’s complaint for a fresh investigation. It is the Commission’s
decision arising from that investigation and subsequent conciliation attempt
which is the subject matter of this application.
[13]
The investigator noted that the Applicant
alleged adverse differential treatment by the Respondent in terminating her
employment while she was on disability leave. The Applicant’s allegations were
investigated and were categorized by the investigator into four distinct
issues. The investigator considered in detail each of the allegations. She
reviewed the history of the complaint, considered the chronology of events, and
interviewed the Applicant as well as three of the Respondent’s current or
former employees.
[14]
When the investigation was finished, the
original conclusion drawn by the investigator was that the matter should be
referred to the Tribunal. After discussion with the director and review by the
legal team at the Commission the recommendation in the report to the Commission
was not a referral to the Tribunal but rather to pursue conciliation. The
Applicant’s evidence is that the investigator told her the report was changed
because of the February 2010 settlement.
[15]
In an email to the Applicant on April 1, 2014
the investigator wrote:
As I tried to
explain on the phone yesterday, I was mistaken when I thought there was
agreement with my initial report recommending Tribunal. I sincerely apologize
for the frustration, anxiety and upset this is caused you. After further
discussions, it was felt that a recommendation of conciliation was more
appropriate. You may, after receiving and reviewing the report, include any of
your concerns in your submissions. The Commission will review the parties’
submissions before making a decision about your complaint.
[16]
On April 11, 2014 the Applicant received the
investigation report which did recommend conciliation “to
attempt to bring about a settlement of the complaint”. Following
delivery of the report, both parties were provided with the opportunity to
present submissions which they both did. Both parties were also provided with
the opportunity to make submissions with respect to each other’s submissions.
The Respondent made no further submissions.
The
Conciliation Process and Report
[17]
The Commission referred the matter to
conciliation in June 2014.
[18]
On September 22, 2014, the conciliator reported
to the Commission that the matter was not resolved and, as set out in the Act,
the Commission could either request the appointment of a Tribunal or dismiss
the complaint because having regard to all the circumstances of the complaint,
an inquiry by a Tribunal was not warranted.
[19]
The conciliator’s report indicated she explained
the process and possible findings to the parties and what the steps would be if
the matter was not resolved. The parties entered into negotiations and
explored options for settlement during which the conciliator discussed with the
parties the merits of the complaint and provided additional information on the
remedies they could reasonably expect if the Tribunal substantiated the complaint.
Offers were exchanged between the parties but they were unable to reach a
settlement.
[20]
The parties were invited to make submissions
with respect to the report and, subsequently, with respect to each other’s
submissions. The Applicant made submissions on October 19, 2014. The
Respondent’s submissions were sent October 20, 2014. The Applicant also made
lengthy submissions on November 10, 2014 addressing the Respondent’s
submissions.
[21]
The Respondent agreed to disclose the offer it
made during conciliation to the Commission for information and it was attached
to the conciliation report.
The Commission’s Decision
[22]
The Commission rendered the Decision at issue on
December 10, 2014. The opening paragraph confirms, without specifying by date
or detail, that the Commission reviewed:
•
the conciliation report,
•
the submissions made by the parties on the
conciliation report,
•
the investigation report,
•
the submissions made by the parties on the
investigation report and
•
the complaint form.
[23]
The Commission then dismissed the complaint
because, “having regard to all the circumstances of the
complaint an inquiry by a Tribunal is not warranted pursuant to subparagraph
44(3)(b)(i) of the Act.”
[24]
The Commission’s explanatory text for the
dismissal consisted of reproducing verbatim, with attribution, the financial
terms of the Respondent’s settlement offer and the brief submissions made by
the Respondent justifying it, including their position that it was a reasonable
offer.
[25]
There were only two sentences in the Decision
which were not written by the Respondent. One was the actual finding that “in all the circumstances reference to a tribunal was not
warranted” and the other was the opening recitation of what documents
were reviewed. (In that respect as already observed not all the submissions
made to the investigator were actually before the Commission as the Applicant’s
May 26, 2014 reply submissions were omitted.)
[26]
The Decision does not refer to any aspect of the
investigator’s report other than the two paragraphs from it selected by the
Respondent to justify its offer both of which were rebutted in detail by the
missing reply submissions from the Applicant.
II.
ISSUES
[27]
In this application the issues are:
(a)
What is the appropriate standard of review of
the Decision?
(b)
Was the Commission’s decision to dismiss the
complaint reasonable?
(c)
If not, what is the appropriate remedy?
III.
THE STANDARD OF REVIEW
[28]
There is no dispute that the standard of review
of a decision of the Commission is reasonableness. However, in a decision where
the Commission dismisses a complaint under subparagraph 43(3)(b) of the Act, it
has been said that a more probing review should be carried out, see Keith v.
Canada (Correctional Service), 2012 FCA 117 at para 45.
[29]
In applying the standard I am required to
consider the “justification, transparency and
intelligibility” of the Commission’s reasoning and whether the decision “falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law”. Dunsmuir v. New
Brunswick, 2008 SCC 9 at para 47.
IV.
WAS THE COMMISSION’S DECISION REASONABLE?
[30]
The Applicant has submitted that the Decision
did not provide sufficient reasons in that it just quoted from the respondent’s
settlement offer and conciliation submission verbatim without responding to the
Applicant’s submissions. She submits this is a breach of procedural fairness
and gives an appearance of bias. However, as held by the Supreme Court in Newfoundland
and Labrador Nurses' Union v. Newfoundland & Labrador (Treasury Board),
2011 SCC 62 [hereinafter Newfoundland Nurses] at paras 16 and 22, and
recently re-iterated by the Federal Court of Appeal in Cycles Lambert Inc.
v. Canada (Border Services Agency), 2015 FCA 45 at para 19, “where there are reasons, there is no issue of a breach of
the duty of procedural fairness. . . . the issue is whether the reasons allow
the reviewing court to understand why the tribunal made its decision . . .”.
[31]
On that basis, I take the Applicant’s submission
to mean simply that the decision is not reasonable in that it does not permit
her to understand why the Commission reached the decision it did and
therefore it suffers from a lack of justification, transparency and
intelligibility.
Analysis
[32]
It is not uncommon for decision-makers to copy
into their decisions large parts of the briefs received from parties. Chief
Justice McLachlin in Cojocaru v. British Columbia Women’s Hospital and
Health Centre, 2013 SCC 30 commented extensively about judicial copying of
submissions. In Cojocaru the decision being reviewed contained 368
paragraphs of which only 47 were predominately in the judge’s own words and
those were largely a recitation of facts. In rejecting the copying argument as
a criticism of the reasons the court put the review test this way at paragraph
70:
the evidence did not show the judge failed
to put his mind to the critical issues . . . [T]he reasons, read as a whole,
show that the trial judge considered the issues and the arguments of both
sides, and came to a conclusion on each of the main issues. (my emphasis)
[33]
The nature of the case is also one of the
important circumstances to review. Here, it is one with serious personal
consequences to the Applicant. This Court has previously determined in Gravelle
v. Canada (Attorney General), 2006 FC 251 at para 39 that “decisions dismissing complaints should be more closely
scrutinized than decisions referring complaints to the Tribunal”
because, as put by Evans J. in Larsh v. Canada [1999] F.C.J. No. 508 (FC),
at para 36:
A dismissal is, after all, a final decision
that precludes the complainant from any statutory remedy and, by its nature,
cannot advance the overall purpose of the Act, namely protection of
individuals from discrimination, but may, if wrong, frustrate it.
[34]
Deference to the decision maker includes an
acknowledgement that not every document or argument need be addressed in
reasons, there is a presumption that what was before them was considered and
they are “not required to make an explicit finding on
each constituent element, however subordinate, leading to its final conclusion
. . .” and, if there are omissions the first step is not to substitute
the Court’s own reasons but rather “look to the record
for the purpose of assessing the reasonableness of the outcome,” see Newfoundland
Nurses at para 15.
[35]
However, when what is being considered is not a
subordinate issue but rather one of central importance to the outcome, the
decision maker must address it in their reasons. Here notably absent from the
decision of the Commission is any reference at all to, or analysis of, the
Applicant’s lengthy reply submissions in which she rebutted each of the
Respondent’s submissions to the conciliator with a variety of additional facts,
corrections to the record as stated by the Respondent, mathematical
calculations as to why the offer made to her was not reasonable for her,
caselaw in support of her position and extracts from human rights articles
dealing with ending the employment relationship.
[36]
On May 26, 2014, the Applicant provided detailed
additional submissions to the Investigator’s Report. However it appears from
the rule 318 (1) (a) certificate that these responding submissions were not
before the Commission when it made the decision to refer the complaint to
conciliation. This raises a question of whether that material was before the
Commission when they considered the matter.
[37]
There is always a question of how far a
reviewing court can “wade into” the record to look for reasons that were not
stated, à la Newfoundland Nurses, but must have been present in arriving
at the decision. Mr. Justice Rennie, as he then was, analyzed the process in Pathmanathan
v. Canada (Citizenship and Immigration), 2013 FC 353 at para 28 this way:
Newfoundland Nurses does not authorize a court to rewrite the decision which was based
on erroneous reasoning. The reviewing court may look to the record in
assessing whether a decision is reasonable and a reviewing court may fill in
gaps or inferences reasonably arising and supported by the record. Newfoundland
Nurses is a case about the standard of review. It is not an invitation to
the supervising court to re-cast the reasons given, to change the factual
foundation on which it is based, or to speculate as to what the outcome would
have been had the decision maker properly assessed the evidence.
[38]
Unlike Cojocaru, the reasons here do not
show the Commission considered the issues and the arguments of both
sides and then came to a conclusion. The Decision only shows the Commission
considered the submissions of the Respondent. It fails to deal with the
Applicant’s submissions at all. By not addressing those submissions the
Commission has left an analytical gap which the Court cannot fill.
Does the Analysis in the Investigator’s Report Add to the
Reasons?
[39]
Normally when reasons are scant the investigator’s
report can be taken as reasons of the Commission. But, in this case, the
Decision is based solely upon the offer of settlement made at the conciliation
stage after the investigation report had already been delivered.
[40]
The investigator’s report initially concluded
this complaint should be sent to a Tribunal. She was then persuaded or directed
(the evidence being unclear) to recommend conciliation because of the February
2010 settlement. That is the settlement which Justice Kane had found did not
appropriately take into account the Applicant’s mental health issues at the
time she executed a Release in favour of the Respondent.
[41]
The justification presented by the Respondent
for making the offer to settle did reference two paragraphs of the
investigator’s report but, as with the conciliator’s report, the Applicant
filed reply submissions which dissected the Respondent’s submissions and
disagreed with the investigator. As those submissions were not before the
Commission, the Decision may be flawed in that not all the argument was before
the Commission.
Conclusion
[42]
In a recent decision of this court dealing with
failure to consider submissions, Justice Fothergill found in Brosnan v. Bank
of Montreal, 2015 FC 925 at para 11, that “[w]here
the Commission fails to address submissions that go to the heart of the
complaint under adjudication, this implicates the procedural fairness of
the investigation and the resulting decision.” (my emphasis).
[43]
Although Brosnan dealt with a deficient
investigation, the reasoning applies equally on the facts of this particular
case to the conciliation report and the submissions made with respect to the
settlement offer made during conciliation because the Commission made that
offer to settle the determinative issue. The Respondent’s offer, attached to
the conciliation report and reproduced in the Decision, effectively took the
place of the investigation report.
[44]
In all the circumstances of this case, including
the importance of the outcome to the Applicant, which precludes her from any statutory
remedy for her complaint, and the lack of transparency or justification in the
reasons set out in the Decision, I find the Decision cannot stand.
V.
REMEDY
[45]
I do not think this is a case which requires
another fresh investigation or conciliation. It simply requires a fresh look.
Therefore the Decision at issue of the Commission is quashed. The complaint is
remitted to the Canadian Human Rights Commission for a re-determination of the
complaint using the same materials with the addition of the Applicant’s
additional reply submissions with respect to the investigation report and
taking into account these reasons.
Email this Content