Docket: T-1483-15
Citation:
2016 FC 687
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 20, 2016
PRESENT: The Honourable
Mr. Justice Roy
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BETWEEN:
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ALAIN GRENIER
(VETERAN)
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, Alain Grenier, applies to the
Federal Court for judicial review of a decision rendered on
August 7, 2015, by the Canadian Human Rights Commission (the
Commission), which deemed inadmissible his complaint about the treatment he
allegedly received during his years in the Canadian Armed Forces.
[2]
The only real issue before the Court is whether
the decision rendered by the Commission was reasonable in the circumstances.
The allegation that the applicant did not fully present his case was not the
subject of argument. Given the many pages of submissions made by the applicant,
it is clear that the allegation is without merit. So there is no need for
lengthy discussion of the events alleged in the complaint filed with the
Commission. After reviewing the record, the Court finds that the Commission’s
decision was reasonable and that the application for judicial review must be
dismissed.
I.
Facts
[3]
The applicant joined the Canadian Forces on
April 2, 2004. Prior to that, he was a private investigator and
worked for a number of police forces.
[4]
The applicant claims that he went through a
difficult time when training at Royal Military College Saint-Jean, then at the
Borden base, and when he came back to Saint-Jean. Specifically, he underwent
training to join the military police. He claims that he experienced harassment
and unfair treatment from his superiors, who allegedly treated him with
disregard and disrespect. He was supposedly subjected to punishments he did not
deserve.
[5]
A grievance was formally filed on
November 24, 2005, to quash a decision that had resulted in his
demotion. The grievance was allowed on March 26, 2006. However, this
apparently did not end the harassment and prejudice. Indeed, when the applicant
arrived at the Saint-Jean Garrison after completing his training, the abuse
allegedly continued. Additionally, the applicant began to experience pain in
his legs and pulmonary difficulties on March 12, 2007. It would
appear that in July 2007, a military physician diagnosed him with
depression, which eventually led to the diagnosis that he was unfit to continue
working as a military police officer. That diagnosis was made on
May 8, 2008.
[6]
After going on sick leave in 2008, the applicant
was to be discharged from the Canadian Forces on February 16, 2010,
for medical reasons. His last medical exam was in January 2010.
[7]
While contending with his health problems, the
applicant took steps to apply for disability benefits. He applied on
November 6, 2007. On September 22, 2008, an adjudicator
denied his claim on the ground that the medical documentation on file at the
time showed no objective evidence of harassment or unfair treatment by military
officials to support the conclusion that they had caused the adjustment disorder
with mixed mood referred to in his claim.
[8]
The applicant did not let things end there. He
filed an application for review that resulted in a decision on
November 3, 2009. He was granted two-fifths pension entitlement for
his disability, because the grievance had supposedly aggravated his
psychological condition; however, the review decision maintained that it had
not been established that the disorder referred to was due to unfair treatment
or harassment by military officials.
[9]
The applicant was once again dissatisfied and
appealed to the review panel, which denied him full entitlement on
June 8, 2010.
[10]
The next step was to appeal to the appeal board,
which upheld the review panel’s decision on November 4, 2011. As a
result, entitlement was maintained at two-fifths.
[11]
The applicant sought judicial review of that
decision in this Court. His application was allowed, and the matter was
returned to the appeal board (Veterans Review and Appeal Board, or VRAB), which
ruled, on November 18, 2013, that five-fifths entitlement was
appropriate.
II.
Contested Decision
[12]
The applicant seeks judicial review of the
Commission’s decision not to deal with his complaint on the ground that it is
inadmissible under paragraph 41(1)(e) of the Canadian Human
Rights Act, R.S.C., 1985, c. H-6 (the Act), which reads as follows:
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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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(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.
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e) la plainte a été déposée après l’expiration d’un délai d’un an
après le dernier des faits sur lesquels elle est fondée, ou de tout délai
supérieur que la Commission estime indiqué dans les circonstances.
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[13]
In this case, the decision was formally rendered
on July 29, 2015. The Commission needed to satisfy itself that the
last act or omission on which the complaint is based dated back more than a
year, and that an extension was not appropriate in the circumstances. The
essence of the decision can be found in the second paragraph of the decision,
where the Commission says:
[translation]
The Commission notes in particular that the
complainant pursued another avenue of recourse and was able to give
instructions to his counsel in that regard. Although a medical note was
provided in an effort to explain the long delay in filing the complaint, this
note is vague, merely indicating that the complainant was incapable of filing a
complaint. The note does not include an estimation of how long the complainant
was incapable of filing a human rights complaint, or specify whether the
complainant is capable of doing so now. The Commission also notes that, given
the amount of time that has passed, the respondent has likely destroyed certain
relevant documents in accordance with its record retention policies. For these
reasons and those set out in the report, the Commission has decided not to deal
with the complaint.
[14]
As is often the case in these matters, the
Commission endorsed the investigation report, which provides a great deal more
information. The Commission employed a rigorous process. The complaint filed by
Mr. Grenier on May 28, 2014, resulted in an investigation and in
the report arguing for the application of paragraph 41(1)(e) of the
Act. It is worth quoting in full the reason given in the complaint that
warranted investigating it:
[translation]
It was not until the decision rendered on
November 18, 2013, by the VRAB appeal board (granting him full
entitlement for his adjustment disorder with mixed mood) that the complainant’s
psychological condition became clear and he realized the extent of the
discrimination and harassment he had experienced while serving in the Canadian
Forces.
The investigation report is dated
March 26, 2015. It was the subject of comments, submissions and
representations from the applicant on May 15 and June 23, 2015,
and the Department of National Defence presented its case on April 27, 2015.
[15]
The report shows that the applicant began to
communicate with the Commission as early as April 2012. He sent documents
in March 2014, and, after a few attempts, his complaint was received on
May 29, 2014. The report notes at the outset that the last alleged
discriminatory practice occurred in February 2008. The complaint is, by
definition, untimely.
[16]
Even though Mr. Grenier argues that the
discrimination dawned on him in November 2013 when he understood the
extent of the alleged discrimination and harassment against him, at the time he
received a favourable decision from the VRAB, this argument is not accepted.
The report indicates at paragraph 25:
[translation]
25. It is established that, where a
complainant becomes aware of a discriminatory practice after the fact, the date
of the discrimination is when the complainant should have known that he or she
was discriminated against. In this case, the complainant describes a situation
that spans several years; the possibility that he was discriminated against
should have dawned on him before November 2013. In fact, it is clear that
he knew there was a problem at work before November 2013, since he filed
grievances and demand letters against the respondent concerning discrimination
in October 2005, February 2007 and January 2009, through his
counsel.
[17]
The report relies on the applicant’s appealing
to the VRAB over the years to show that he should have been able to file his
complaint in a timely manner. The report points out:
[translation]
29. The complainant used another avenue
of recourse, the VRAB, against the respondent to establish his disability and
his disability pension rights. The VRAB ruled in his favour, finding that his
diagnosis is entirely due to service factors. The respondent points out that
the applicant’s being able to appeal to the VRAB shows that he could have filed
his complaint with the Commission in a timely manner. It should also be noted
that using another avenue of recourse does not exempt the complainant from the
requirement to file a complaint within the time limit.
The report says at paragraph 31:
[translation]
31. It appears that the complainant
was not diligent in filing his complaint, which was filed more than six years
after the last alleged discriminatory practice. It supposedly occurred in
February 2008, but the complaint was filed in May 2014. Though he
admits to filing his complaint too late, the complainant has provided no
reasonable explanation for the delay. The complainant asks the Commission to
use its discretion to decide his complaint in light of his condition. However,
the complainant was represented by multiple lawyers, who acted on his behalf
before the VRAB. In fact, the complainant and his counsel were able to pursue
this other judicial process for years, which shows that they could have filed a
complaint with the Commission within the statutory time limit. His counsel
could have filed a complaint with the Commission on his behalf, but did not.
III.
Parties’ Submissions
[18]
The applicant raised several issues—some
repetitive—that, as I understand them, can be summarized as follows:
- Is the
applicant entitled to a presumption that the one-year time limit for
filing his complaint was observed?
- Was the
Commission’s decision not to extend the one-year time limit reasonable?
- Was the
applicant denied the right to be heard by the Commission because he was
supposedly prevented from elaborating on the reasons for his inability to
submit his complaint?
- Is the
intelligibility of the Commission’s decision sufficient, having regard to
the law?
[19]
The applicant expanded upon his arguments at the
hearing.
[20]
While the applicant’s memorandum of fact and law
raised numerous issues which are listed at paragraph 18 of these reasons,
he did not expand upon his arguments in his memorandum. At the hearing, he
simply argued that the only date relevant to paragraph 41(1)(e) was
November 18, 2013, when the VRAB granted him full entitlement,
finding that his disability had been caused by the harassment experienced.
[21]
In support of this argument, the applicant cited
Tamachi v. Canada (Human Rights Commission), 2005 FC 1534 [Tamachi].
[22]
In response to questions from the Court, the
applicant confirmed that he was not disputing the decision not to extend the
time limit, as permitted by paragraph 41(1)(e). Moreover, using the
notion of presumption was not what the applicant had in mind. He simply wanted
to stress that he had not become aware of the harassment until the latest
decision concerning his disability pension.
[23]
I nonetheless decided to review the reasons for
refusing to extend the one-year time limit, because I was not satisfied that
the applicant, who does not have legal representation, fully understood the
scope of the concession he was making.
[24]
Not surprisingly, the respondent considers the
reasons given for not extending the time limit perfectly reasonable within the
meaning of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 [Dunsmuir], rejecting at the outset the notion that there was a
presumption that the ground of discrimination arose when the VRAB rendered its
decision in November 2013.
[25]
The respondent also argues that the Commission’s
decision was perfectly reasonable in the circumstances, citing in particular
this Court’s decisions in Jean Pierre v. Canada (Citizenship and
Immigration), 2015 FC 1423 and 168886 Canada Inc. v. Reducka, 2012 FC 537,
408 FTR 247. At the hearing, other cases were cited. These will be discussed
later.
[26]
Regarding the allegation that the applicant was
unable to present his case, the respondent notes that he not only filled out
the complaint form but also had two opportunities to comment on what was then
the draft report in this case. Lastly, the reasons given by the Commission, through
the report it endorsed, are perfectly intelligible.
IV.
Analysis
A.
Standard of review
[27]
There is no need for lengthy discussion of the
standards of review in this matter. With regard to a potential lack of
procedural fairness, the applicable standard is correctness (Mission
Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at paragraph 79).
I am aware that in Bergeron v. Canada (Attorney General), 2015 FCA 160 [Bergeron],
the Federal Court of Appeal noted some uncertainty as to whether a degree of
deference is warranted, even when the standard of review is correctness (see
paragraphs 67 et seq.). In this case, no one has suggested
that the standard of correctness should be applied with a degree of deference,
and I see no reason to consider this possibility, because, in my view, even
with the standard alone, the applicant cannot successfully argue that he did not
have the opportunity to present his case.
[28]
As for the application of paragraph 41(1)(e),
the decision on whether to extend the time limit is subject to the
reasonableness standard of review (Bergeron, above; Zulkoskey v.
Canada (Employment and Social Development), 2015 FC 1196; Khaper v. Air
Canada, 2015 FCA 99). It appears that the applicant is no longer disputing
the refusal to extend. However, I agree with counsel for the respondent that it
merits discussion, because the applicant did not have legal representation at
the hearing of the application for judicial review. Moreover, the same standard
applies to the issue of when the time limit begins to run. Therefore, the
Commission’s decision will be measured against the standard of reasonableness.
This means that paragraph 47 of Dunsmuir is fully applicable:
47 Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
B.
Presumption of Conformity
[29]
According to the applicant, the Act allows for a
presumption that the one-year time limit was observed. No authority was cited
in support of such a novel proposition, and I know of none. I must therefore
conclude that there is no such presumption. In fact, such a presumption would
be directly contrary to the words of the statute. If a common law presumption
had indeed existed—which has not been established in any way—it would have been
displaced by the statutory language. In any event, the hearing revealed that
the applicant was not relying on the notion in the technical sense.
[30]
Rather, the applicant argues that the
discrimination he experienced dawned on him in November 2013, when the
VRAB ruled in his favour. That statement is rather surprising, because the
issue before the administrative tribunal was largely one of determining whether
the mistreatment that the applicant had complained about for several years had
caused his disability, which would warrant full entitlement.
[31]
A review of the wording of paragraph 41(1)(e)
shows that Parliament is indeed referring to a complaint based on “acts or omissions the last of which occurred more than one
year. . . before receipt of the complaint.” What matters is the date of
the discrimination. The applicant is complaining about harassment, and it could
not have continued after his discharge in 2010, or probably even after he went
on leave in 2008. The steps he took were with a view to being granted different
entitlement than that awarded by Veterans Affairs Canada on the basis of the
harassment he said he had experienced. Clearly, the applicant had full
knowledge of this harassment. The alleged events did not occur in the year
preceding his complaint. What is more, these same events gave rise to recourse
sought by the applicant. They were the subject of previous litigation. The
alleged discrimination ended far before the proceedings and the
2013 decision. The date referred to is that on which [translation] “the
complainant’s psychological condition became clear.” But that is not the
issue. The issue is whether it was reasonable for the Commission to conclude
that the discrimination had ended more than a year before receipt of the
complaint and that the applicant had been fully aware of it.
[32]
The Court thinks it reasonable to consider 2008,
when the applicant was discharged from the Canadian Forces, as the date of the
last act or omission on which the complaint is based. The other dates that
could have been considered, namely 2010, when the applicant was discharged from
the Canadian Forces, and April 2012, when he first turned to the
Commission, are also far outside the statutory time limit. The facts in this
case clearly support the conclusion reached by the Commission.
[33]
In this regard, it is recognized in our
jurisprudence that the administrative tribunal has a remarkable degree of
latitude in these matters (Bell Canada v. Communications, Energy and
Paperworkers Union of Canada (1998), [1999] 1 FCR 113, at paragraph 38
(FCA)). In this case, the applicant has failed to demonstrate why the
administrative tribunal should be denied the deference it is owed. In other
words, the applicant has failed to discharge the burden of proving that the
decision was unreasonable. The applicant chose to appeal to the VRAB, and
ultimately won. He even appealed to this Court for judicial review after being
granted only partial entitlement. He first turned to the Commission in
April 2012, two years before filing his complaint, but did not pursue the
matter. In Jean Pierre v. Canada (Citizenship and Immigration), 2015 FC
1423, this Court said:
Moreover, in Good, the Court
indicated, in discussing Johnston v Canada Mortgage and Housing Corp.,
2004 FC 918 (CanLII), that “[t]he date when the complainant first contacts the
Commission regarding a possible complaint does not stop the Clock for the
one-year time limit” (Good at para 26).
[34]
Not only did the clock continue to run, but the
applicant’s turning to the Commission in 2012 shows, at the very least, that he
had been aware since then that he had the option of complaining to the
Commission. But even if the one-year period had begun to run on that date, the
complaint would have still been untimely. It is certainly possible that the
applicant’s prevailing before the VRAB in November 2013 led to the realization
that he may be successful elsewhere. But that does not change the fact that he
chose one avenue of recourse and not the other. The date on which a person
realizes his or her chances of success is not the one provided for in the Act,
that is, the date of the last act or omission on which the complaint is based.
The decision not to file the complaint in a timely manner is fatal. The fact
that he realized his chances of success in 2013 does not exempt the applicant
in any way from the requirement to file within the time limit. As he himself
says in his complaint, he is not claiming that the November 18, 2013
decision revealed the discrimination or harassment, but rather that he had not
previously realized its extent.
C.
Refusal to Extend
[35]
Based on his response at the hearing, the
applicant no longer seeks judicial review of the decision not to extend. One
might think this concession is due to his assuming that time began to run in
November 2013. No extension would be required. In any event, the decision was
within the range of possible, acceptable outcomes in respect of the facts and
the law. Had the time limit been narrowly missed, the situation would be
different. But in this case, it was reasonable for the Commission to find that
the applicant had been capable of filing his complaint in a timely manner
because he was pursuing recourse through another administrative tribunal on the
basis of essentially the same facts.
[36]
In Donohue v. Canada (National Defence),
2010 FC 404 [Donohue], a case very similar to the one before this Court,
my colleague Justice O’Keeffe concluded:
31 Given that the applicant filed his
complaint almost a decade after the alleged incidents of discrimination took
place, it would have been reasonable for the Commission to require a clear and reasonable
excuse for the delay. He did not provide that. Based on the submissions from
the applicant, after having his application to quash his release struck out by
this Court (Donoghue above), the applicant’s only excuse for not
bringing the complaint is that he was dealing with an application at Veterans
Affairs for disability benefits which he ended up receiving. It would be hard
to accept that the application to Veterans Affairs kept him from making the
complaint. It was not relevant to any question of whether he was discriminated
against. Nor did the process involve laying blame with any of his previous
superiors, the prime focus of his complaint to the Commission.
The case was appealed, and the Federal Court
of Appeal (2011 FCA 50) upheld the trial judge’s decision, stating as
follows:
5 The Judge concluded that the
CHRC’s rejection of Mr Donoghue’s complaint for delay was not
unreasonable. In reaching his decision, he took particular account of the
breadth of the CHRC’s discretion under paragraph 41(1)(e), the length of
the delay, the resulting prejudice to the respondent, and Mr Donoghue’s
active pursuit of other forms of redress before going to the CHRC.
6 Substantially for the reasons
given by the Judge, we agree that, on the basis of the information before the
CHRC when it made its decision, there is no warrant for judicial intervention
in the exercise of the CHRC’s discretion not to investigate Mr Donoghue’s
complaint because of his delay.
[37]
Mr. Grenier referred to this Court’s
decision in Tamachi, cited above. That case dealt with the issue of when
the one-year period begins to run. In Tamachi, the Court concluded that “the review and appeal process pursued by Mrs. Tamachi
was not irrelevant because in this case, unlike Zavery, a negative
decision on her pension application was a constituent element of the alleged
discrimination” (paragraph 14). That is not the case here. The
processes initiated to be granted greater entitlement are not an element of the
alleged discrimination. Indeed, they are unrelated to the alleged
discrimination. The situation is akin to that in Zavery v. Canada (Human
Resources Development), 2004 FC 929, where Justice Snider wrote:
31 Mr. Zavery also made
submissions on the timeliness issue. His main argument was that he did not file
a complaint sooner because he was _involved in a time-consuming and
delay-inducing process through the Privacy Commissioner_. On June 29, 2000,
Mr. Zavery finally obtained the decision of the Privacy Commissioner and
began considering his complaint to the Commission. In my view, the fact that
Mr. Zavery was pursuing a _process through the Privacy Commissioner_ is
irrelevant. His grievance before the Privacy Commissioner, although related,
was not the same as the allegations in his complaint to the Commission. Each
process was initiated to cure two different kinds of grievances. On the facts
of this case, exhausting the former process could not reasonably be a
pre-requisite for initiating the latter one.
The outcome of processes for obtaining
greater entitlement, an issue completely different from a discrimination
complaint under the Act, can reasonably be excluded from the acts or omissions
on which the discrimination complaint is based; it is not in itself a
discriminatory practice. Moreover, the Federal Court of Appeal’s decision in Donoghue,
cited above and more recent than Tamachi, is binding on the Court.
D.
Being Fully Heard
[38]
A medical note dated April 16, 2015,
was cited in an attempt to establish that the applicant had not been fully
heard. It was perfectly reasonable for the Commission to assign little weight
to it, given the content of the note, which, as the Commission aptly put it, [translation] “does
not include an estimation of how long the complainant was incapable of filing a
human rights complaint, or specify whether the complainant is capable of doing
so now.” In other words, the physician’s note was equivocal, and, in any
case, the applicant’s condition clearly did not prevent him from pursuing other
recourse elsewhere. I note that a new medical opinion was filed in the record
after the Commission’s decision. Ex post facto evidence is rarely
admissible on judicial review (Delios v. Canada (Attorney General), 2015
FCA 117, and, more generally, Brown & Evans, Judicial Review of
Administrative Action in Canada, Carswell, loose-leaf, at 6:5300). It is no
more admissible in this case.
[39]
As for the applicant’s ability to present his
case, it seems obvious to me that this general argument cannot be recognized,
given his submissions; they were detailed and well presented on both
May 15, 2015, and June 23, 2015. Simply put, the applicant
has said what he needed to say. I would add that the applicant made no mention
of this at the hearing, and his memorandum says nothing on this topic. He
referred to two pages of the record; one might suspect that he was talking
about the medical opinion mentioned in the previous paragraph of these reasons.
If so, this “evidence” was not before the
Commission when it made its decision. The Commission could not take it into
account. Nor can this Court, for that matter. At any rate, it is merely an
attempt to strengthen the medical evidence after the Commission deemed it
inadequate.
E.
Intelligibility
[40]
The applicant raised an argument to the effect
that the Commission’s reasons are not intelligible. However, it is recognized
that reports submitted to the Commission are part of the latter’s reasons, if
it endorses them, of course. That was the case here. In this regard, the
leading case is Newfoundland and Labrador Nurses’ Union v. Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland
and Labrador Nurses’ Union], where the Court stated: “Read as a whole, I do not see Dunsmuir as standing
for the proposition that the ‘adequacy’ of reasons is a stand-alone basis for
quashing a decision, or as advocating that a reviewing court undertake two
discrete analyses — one for the reasons and a separate one for the result”
(paragraph 14). The Court went on to urge the review courts to read the
reasons together with the result to determine whether the result falls within a
range of possible outcomes, as required by paragraph 47 of Dunsmuir.
Paragraph 15 says:
15. In assessing whether the decision
is reasonable in light of the outcome and the reasons, courts must show
“respect for the decision-making process of adjudicative bodies with regard to
both the facts and the law” (Dunsmuir, at para. 48). This means that
courts should not substitute their own reasons, but they may, if they find it
necessary, look to the record for the purpose of assessing the reasonableness
of the outcome.
[41]
In this case, there is no need to even rely on
the Court’s words in Newfoundland and Labrador Nurses’ Union. This Court
is satisfied that the decision was reasonable. Indeed, when the investigation
report is read together with the Commission’s decision, there is no doubt that
it is intelligible. The Commission clearly laid out the reasons for its finding
of untimeliness, and refused to grant an extension. This explanation is
sufficient.
[42]
Consequently, the application for judicial
review must be dismissed with costs payable to the respondent in the amount of
$500.
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