Docket: T-1431-14
Citation:
2015 FC 532
Ottawa, Ontario, April 24, 2015
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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KEITH MULLIGAN
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Applicant
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and
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CANADIAN NATIONAL RAILWAY COMPANY
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s. 18.1 of the Federal
Courts Act, RSC 1985, c F-7 for judicial review of a decision of the
Canadian Human Rights Commission [Commission], dated May 7, 2014 [Decision],
which decided not to deal with the Applicant’s complaint pursuant to s.
41(1)(d) of the Canadian Human Rights Act, RSC 1985, c H-6 [Act].
II.
BACKGROUND
[2]
The Applicant started working as a Heavy
Equipment Operator for Canadian National Railway Company [CN] in August 1981.
He was a member of a bargaining unit represented by the National Automobile,
Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) [ Union].
[3]
On December 19, 2012, the Applicant’s employment
was terminated because he refused to attend a medical assessment to determine
his fitness for work. CN requested the medical assessment because the
Applicant’s position was a safety sensitive position and there were concerns regarding
his behaviour. The Applicant says that he refused to attend the medical
assessment because he was receiving treatment for drug dependency and believed
that was sufficient to address CN’s concerns.
[4]
On January 8, 2013, the Union filed a grievance
to contest the Applicant’s termination.
[5]
On February 14, 2013, the Union closed the
Applicant’s file. The Union said that the Applicant had not responded to their
requests for information and it “was not in a position
to advance the matter with the limited information at hand.”
[6]
In March 2013, the Applicant submitted a
complaint to the Commission. He alleged that CN had discriminated against him
on the ground of disability by terminating his employment contrary to s. 7 of
the Act. The Commission decided not to deal with the complaint pursuant to s.
41(1)(a) because the Applicant had not exhausted the Respondent’s grievance
process.
[7]
On April 19, 2013, CN denied the Union’s grievance. The Union did not refer the grievance to arbitration.
[8]
On October 1, 2013, the Applicant submitted another
complaint to the Commission. He alleged that, again, CN had discriminated
against him on the ground of disability by terminating his employment contrary
to s. 7 of the Act.
[9]
On October 29, 2013, the Applicant was advised
that the Commission would be preparing a s. 40/41 report to determine whether
it should deal with his complaint. The Applicant was invited to prepare a
letter stating his position on whether the Commission should not deal with the
issues because “the human rights issues in this
complaint may have already been dealt with through another process.” Counsel
for the Applicant made submissions to the Commission both in advance of the
preparation of the report and after being provided a copy of the s. 40/41
report [Report].
III.
DECISION UNDER REVIEW
[10]
On May 7, 2014, the Commission decided not to
deal with the Applicant’s complaint pursuant to s. 41(1)(d) of the Act. The
Commission adopted the Report’s conclusions and decided that the complaint was
vexatious under s. 41(1)(d) of the Act (Applicant’s Record at 48):
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.
IV.
ISSUES
[11]
The Applicant raises the following issues in
this application:
1. Whether the Commission unreasonably refused to exercise its
jurisdiction;
2. Whether the Commission erred in law by:
a) Unreasonably finding the Applicant’s complaint to be vexatious; or,
b) Having found the complaint to be vexatious, unreasonably ignoring
that justice required it to deal with the complaint anyway; and,
3. Whether the Commission unreasonably based its decision on erroneous
findings of fact made without regard to the material before it.
V.
STANDARD OF REVIEW
[12]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis
need not be conducted in every instance. Instead, where the standard of review
applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the relevant
precedents appear to be inconsistent with new developments in the common law
principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[13]
The Applicant submits that decisions under s.
41(1)(d) of the Human Rights Act are reviewed on a standard of
reasonableness: Chan v Canada (Attorney General), 2010 FC 1232 [Chan].
The Respondent submits that the Commission’s decision not to deal with a
complaint under s. 41 of the Human Rights Act is a discretionary
decision reviewable on a standard of reasonableness: Exeter v Canada
(Attorney General), 2011 FC 86 at para 19, aff’d 2012 FCA 119 at para 6 [Exeter];
Morin v Canada (Attorney General), 2007 FC 1355 at para 25, aff’d 2008
FCA 269.
[14]
All of the issues question the reasonableness of
the Commission’s decision to not deal with the complaint. The Court agrees that
these decisions are reviewable on a standard of reasonableness: Chan,
above, at para 15; Exeter, above, at para 6.
[15]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”:
see Dunsmuir, above, at para 47; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[16]
The following provisions of the Act are
applicable in this proceeding:
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Commission
to deal with complaint
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Irrecevabilité
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41. (1)
Subject to section 40, the Commission shall deal with any complaint filed
with it unless in respect of that complaint it appears to the Commission that
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41. (1) Sous
réserve de l’article 40, la Commission statue sur toute plainte dont elle est
saisie à moins qu’elle estime celle-ci irrecevable pour un des motifs
suivants :
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[…]
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[…]
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(d) the
complaint is trivial, frivolous, vexatious or made in bad faith; or
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d) la plainte
est frivole, vexatoire ou entachée de mauvaise foi;
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[…]
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[…]
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VII.
ARGUMENT
A.
Applicant
[17]
The Applicant submits that the Commission
unreasonably refused to exercise its jurisdiction. The Applicant concedes that
the Commission is entitled to adopt the Report for its reasons: Chan,
above, at paras 39-40. However, the Applicant distinguishes the present
proceeding from the Chan case on two grounds. First, the Commission’s
adoption of the Report was inadequate because it fails to show that the
Commission considered the submissions before it and fails to recognize that the
human rights issues were not considered in the grievance process: Vancouver
International Airport Authority v Public Service Alliance of Canada, 2010
FCA 158. Second, the internal grievance process does not constitute a proper
decision-maker. The grievance process is not an independent arbitrator and it
failed to provide reasons for its decision on the human rights issues.
[18]
The Applicant characterizes the grievance
process as an internal negotiation between the Union and CN. If the Commission
does not deal with the complaint then he says the Union’s Decision to not refer
the grievance to arbitration will have denied him the ability to have his human
rights issue considered by a decision-maker. The Union’s Decision to not
proceed to arbitration was based, in part, on the Applicant’s refusal to
cooperate but the Applicant says that the nature of his disability carries the
need for reasonable flexibility regarding deadlines and expectations. The
Union’s Decision was also based on other factors including time, money and
resources.
[19]
In the alternative, if the internal grievance
process constituted a decision-maker, the Decision is unreasonable because the
grievance did not address the human rights issues. It referenced “drug
dependency” and concluded there was insufficient evidence.
[20]
If the complaint was correctly deemed vexatious,
then the Applicant submits that the Commission erred in law by ignoring that
justice required the Commission to deal with the complaint anyway. The Decision
says the internal grievance process was fair but fails to consider the
Applicant’s reply submissions.
[21]
Finally, the Decision is unreasonable because it
relies on the erroneous finding that the Applicant’s human rights issues were
already addressed by a decision-maker.
B.
Respondent
[22]
The Respondent submits that it was reasonable
for the Commission to refuse to deal with the complaint. The Report constitutes
the reasons for the Decision: Canada (Attorney General) v Sketchley,
2005 FCA 404 at para 37 [Sketchley]; Bergeron v Canada (Attorney
General), 2013 FC 301 at paras 28-29 [Bergeron]. The Applicant had
the opportunity to address the human rights issues through the Union but he failed to cooperate with the search for accommodation. The Commission may
refuse to deal with a complaint if it is obvious that the complaint cannot
succeed. A complainant who refuses to collaborate in the search for
accommodation will have his or her complaint dismissed: Central Okanogan
School District No 23 v Renaud, [1992] 2 S.C.R. 970.
[23]
The Commission’s Decision to refuse to deal with
the complaint is also in accordance with Supreme Court of Canada jurisprudence
regarding the importance of permitting administrative tribunals to curb abuse
of process: British Columbia (Workers’ Compensation Board) v Figliola,
2011 SCC 52. It would be an abuse of process to advance a human rights
complaint where the complainant has failed to cooperate with their union to
have the same human rights issues addressed.
[24]
Contrary to the Applicant’s submissions, s.
41(1)(d) does not require that a decision be made by an arbitrator. The
Commission is granted great latitude in exercising its discretion and assessing
the appropriate factors in performing its screening function: Sketchley,
above, at para 38; Bergeron, above, at para 39. Further, the Federal
Court has held that s. 41(1)(d) may apply in situations where a union has
decided not to pursue a grievance to arbitration: Bergeron, above, at
para 38. There is also no evidence that those who decided the Applicant’s grievances
were not impartial: Bergeron, above, at para 43.
[25]
The Report shows that the Investigator turned
her mind to the outcome of the grievance process, the Applicant’s allegations
relating to substance abuse, and the question of reasonable accommodation. The
Commission reasonably concluded that the allegations raised in the complaint had
already been addressed in the grievance process and that the grievance process
was fair.
VIII.
ANALYSIS
[26]
The Applicant raises three (3) grounds for
reviewable error but, in the end, they all come back to the issue of the
Applicant’s own failure to cooperate in the grievance process. Essentially, the
Commission came to the conclusion that the Applicant’s complaint was vexatious
under s. 41(1)(d) of the Act because the Applicant’s human rights allegations
had already been addressed by the grievance process.
[27]
As the Report found, the Applicant’s Union
representative filed a grievance on his behalf that raised the same human
rights issues as those in the complaint to the Commission. The Union had to
close out its grievance file because the Applicant would not cooperate with its
attempts at obtaining accommodation for him. The Union concluded that it could
not advance the grievance to arbitration because, given Applicant’s failure to
cooperate in providing the information requested and required for the grievance
process, there was insufficient information to advance the matter. In the end,
the grievance process was exhausted without going to arbitration because the
Applicant failed to cooperate. This was the final decision in the grievance
process.
[28]
The Applicant attempted to convince the
Commission, and he has attempted to convince this Court, that his disability
prevented him from providing the materials and cooperation required by the
grievance process. In his submissions to the Commission, he alleged as follows
(CTR at 14):
Given the nature of [the Applicant’s]
disability, it follows that it would be logical for the Company to have been in
closer contact with the Union in order to determine what the correct situation,
and prognosis, for [the Applicant] was. It is understandable that an individual
with a disability would encounter difficulty in navigating deadlines without
reasonable assistance, and it was further understandable that [the Applicant]
mistakenly believed the matter was being dealt with by his Union and his
doctor.
[29]
There was no evidence before the Commission, and
there is none before me, to support this bare allegation that the Applicant had
difficulties with deadlines and mistaken beliefs because of his disability. The
Applicant simply expected the Commission, and now asks the Court, to draw an
inference to this effect from the nature of his disability which is drug dependency.
It is noticeable that, in the affidavit he has filed with this application, the
Applicant says nothing about difficulties with deadlines and mistaken beliefs.
Further, his evidence before me clearly indicates the considerable lengths to
which the Union went to make clear to the Applicant what was required of him
and to encourage him to comply. The letter of April 4, 2013 to the Applicant
from Mr. Robert Fitzgerald, the Union’s National Representative, sets out the
whole picture:
To date, none of this information has been
provided. The Union only has two pieces of medical documentation. One dated
January 24, 2013 stating that you will be seeing an addiction counsellor, but
no confirmation that you did. The second one verified that you do not have any
disability as it relates to psychiatric issues. Although your doctor invited us
to follow up with him providing we had the necessary medical release to do so,
you failed to return the release form that the Regional Representative provided
to you, enclosed with his letter of February 01, 2013.
There have been literally hundreds of phone
calls between you and the Union at different levels. However, you have not
acknowledged the Union’s request for information. You have abated the Union’s request in must the same way you have declined to cooperate with the Company. In
our opinion, the negative connotation of your actions would not be lost on an
Arbitrator.
At some point you did advise the Company
that you had an addiction problem and that you were seeking help for such.
However, there is no evidence that you have been diagnosed with such an
addiction nor is there any evidence to show that you are being treated for
such. As we said earlier, there is only two pieces of medical documentation on
file and neither provide a diagnoses or address treatment.
If in fact there was a clinical diagnosis of
addiction, treatment and rehabilitation, the Company may well have been
obligated to provide accommodation. However, with such an obligation, there
also comes an onus on the employees to cooperate with the efforts to
accommodate. It was put this way by the arbitrator in CROADR case 3354:
The Arbitrator must agree. As confirmed
by the Supreme Court of Canada in Central Okanogan School District No. 23 v.
Renaud, [1992] 2 S.C.R. 970, the obligation of accommodation involves the
cooperative participation of the employer, the trade union and the employee.
That was reflected in an award of this Office in CROA 3173:
The Arbitrator is satisfied that the
approach adopted by the Company is in keeping with its obligations under the Canadian
Human Rights Act. It now seems well-established that when an employee seeks
accommodation by reason of a status that is protected under the Canadian
Human Rights Act, it is incumbent upon the employee concerned to
contribute positively to the process, and to accept an offer of reasonable
accommodation, even though it might not be the specific accommodation which the
employee would prefer.
That is reflected, in part, in the
decision of the Supreme Court of Canada in Central Okanogan School District
No. 23 v. Renaud, [1992] 2 S.C.R. 970.
In that decision, for a unanimous court,
Sopinkla J. wrote as follows:
To facilitate the search for an
accommodation, the complainant must do his or her part as well.
Concomitant with a search for reasonable accommodation is a duty to facilitate
the search for such an accommodation. Thus in determining whether the duty of
accommodation has been fulfilled the conduct of the complainant must be
considered.
[Emphasis in original]
[30]
On the basis of the record that was before the
Commission, and that is before me, the only possible inference is that the Union
made every effort to advance the Applicant’s grievance but had to abandon the
process at step III because of the Applicant’s refusal to provide the necessary
information, a refusal that has not been linked to his alleged disability. The
Commission deals with this matter extensively in the Decision by referring to
Mr. Fitzgerald’s letter and the Step III Grievance Response dated April 19,
2013. The Applicant provided nothing to counter the information regarding his
non-cooperation. It has to be remembered that it was the Applicant who provided
the letter from Mr. Fitzgerald so that he was well-aware of what it said about
him, and it also has to be borne in mind that his non-cooperation is evidenced
by his own Union who had supported him in the grievance process. There was
nothing to suggest that the Applicant’s failure to cooperate had anything to do
with his disability.
[31]
It is also noteworthy that the Canadian
Industrial Relations Board came to a similar conclusion when the Applicant
alleged a violation of s. 37 of the Canada Labour Code, and alleged that
the Union breached its duty of fair representation by failing to properly
represent him when it decided not to proceed further with his grievance (Mulligan
v National Automobile, Aerospace, Transportation and General Workers Union of
Canada (CAW-Canada) (31 July 2013), 29997-C (CIRB):
III - Analysis and Decision
In this case, the complainant requests that
the Board hold a hearing. Section 16.1 of the Code provides that the
Board may decide any matter before it without holding an oral hearing. Having
reviewed all of the material on file, the Board is satisfied that the
documentation before it is sufficient for it to decide the matter without
holding an oral hearing.
As mentioned above, the complainant alleges
that the union acted in an arbitrary manner and in bad faith when it did not
properly investigate his grievance, did not contact him and did not seek the
proper information from his doctors and counsellor. The complainant also
alleges that the union violated his rights with respect to article 23.2 of the
collective agreement.
Section 37 of the Code reads as follows:
37. A trade union
or representative of a trade union that is the bargaining agent for a
bargaining unit shall not act in a manner that is arbitrary, discriminatory or
in bad faith in the representation of any of the employees in the unit with
respect to their rights under the collective agreement that is applicable to
them.
The Board’s role in the context of a duty of
fair representation complaint is to examine the union’s conduct in handling the
employee’s grievance (see Bugay, 1999 CIRB 45). A section 37 complaint
cannot serve to appeal a union’s decision not to refer a grievance to
arbitration, or to assess the merits of the grievance, but it is used to assess
how the union handled the grievance (see Presseault, 2001 CIRB 138).
In a complaint under section 37, the
complainant bears the onus of presenting evidence that is sufficient to raise a
presumption that the union has breached its duty of fair representation. The
Board will normally find that the union has fulfilled its duty of fair
representation if it has investigated the circumstances, considered the merits
of the grievance, made a reasoned judgment about whether to pursue the issue,
and if it advised the employee of the reason for its ultimate decision not to
proceed any further.
The duty of a member to cooperate with his
union is described in the following passage from McRaeJackson, 2004 CIRB
290:
[15] The union’s duty of fair
representation is predicated on the requirement that employees take the
necessary steps to protect their own interests. Employees must make the union
aware of potential grievances and ask the union to act on their behalf within
the time limits provided in the collective agreement. They must cooperate with
their union throughout the grievance procedure, for example by providing the
union with the information necessary to investigate a grievance, by attending
any medical examinations or other assessments.
The evidence on file indicates that the
union filed a grievance on behalf of the complainant, processed the grievance
to step three of the grievance procedure, sent several letters to the complainant
seeking medical information and had numerous telephone conversation with the
complainant, with limited success in getting the information needed to further
his case.
In the Board’s opinion, the complainant did
not provide any evidence of wrongdoing by the union. The documentation
submitted indicates that the complainant brought his termination upon himself
by not submitting the information requested by the union. Failure by the complainant
to take such action, along with his refusal to cooperate with the union, leads
the Board to conclude that the union did not act in an arbitrary manner or in
bad faith.
Having reviewed the facts submitted, the
Board finds that the complainant did not provide sufficient facts to establish
that the union has violated its duty of fair representation.
For the above reasons, the complaint is
dismissed.
[32]
This decision by the Canadian Industrial
Relations Board was not before the Commission, but it confirms the Commission’s
conclusions that the Applicant is the one who, for no apparent reason, thwarted
the grievance process that the Commission had earlier told him he had to
exhaust before bringing his complaint to the Commission.
[33]
As the Report makes clear, all of the
Applicant’s submissions were considered including the “issue
of consent and ongoing substance use” that he claims was not addressed
by the Respondent, as well as the correspondence from the Applicant’s doctor
and personnel in the Respondent’s Employee Assistance Program.
[34]
I can find no reviewable error in the
Commission’s Decision (which includes the Report), which ably sets out the
relevant facts and the governing jurisprudence. This is simply a case where the
Applicant, for no apparent reason, refused to cooperate in the grievance
process that could have dealt with his human rights issues and left his Union
with no alternative but to close out the file.
[35]
The Commission provides full reasons as to why
the complaint was vexatious and why justice did not require the Commission to
deal with the complaint.
[36]
Subsection 41(1)(d) of the Act does not require
a decision by a grievance arbitrator. As Justice Zinn pointed out in Bergeron,
above:
[39] The jurisprudence is clear that
the Commission is to be afforded great latitude in exercising its judgment and
in assessing the appropriate factors when considering the application of
paragraph 41(1)(d) of the CHRA and performing this “screening
function:” See, e.g., Sketchley at para 38.
[37]
Bergeron, above,
makes it clear that s. 41(1)(d) of the Act may apply in situations where a
union has decided not to pursue a grievance to arbitration. In the present
case, as the Union letter makes clear, the Applicant refused, for no reason
that is established, to engage in a grievance process that could have provided
him with accommodation and arbitration and that could have dealt with his human
rights issues. The Union makes it clear that his failure to cooperate meant
that there was no point in proceeding to arbitration. Having failed to exhaust
a grievance process that could have provided him with the remedy he sought
before the Commission, the Applicant then filed his complaint with the
Commission. The Applicant failed to show that his complaint could not have
reasonably been dealt with by the grievance process. The Commission’s Decision should
not be disturbed.
[38]
The Commission’s Decision is transparent,
intelligible and justifiable. I can find no reviewable error. It falls within
the range of possible acceptable outcomes which are defensible in respect of
the facts and the law.
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