Dockets: T-1003-15
T-1005-15
Citation:
2016 FC 758
Ottawa, Ontario, July 6, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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Docket: T-1003-15
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BETWEEN:
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CONNIE LIDDIARD
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Applicant
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and
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CANADA POST
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Respondent
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Docket: T-1005-15
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AND BETWEEN:
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CONNIE LIDDIARD
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Applicant
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and
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CANADA POST
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Connie Liddiard has brought two applications for
judicial review [Court File No. T-1003-15 and Court File No. T-1005-15] of
refusals by the Canadian Human Rights Commission [the Commission] to
investigate her complaints of discrimination against Canada Post Corporation
[CPC]. The Commission found that the first complaint had been previously
addressed by a labour arbitrator with authority to consider human rights
issues, and was therefore vexatious pursuant to s 41(1)(d) of the Canadian
Human Rights Act, RSC 1985, c H-6 [the Act]. The Commission found that the
second complaint was the subject of ongoing grievances and, pursuant to s 41(1)(a) of the Act, Ms. Liddiard should exhaust the grievance procedure before filing a human rights complaint
with the Commission.
[2]
For the following reasons, I find that the
Commission reasonably concluded that the substance of Ms. Liddiard’s first
complaint had been dealt with by another decision-maker with the authority to
rule on human rights issues under the Act. The Commission reasonably concluded
that Ms. Liddiard’s second human rights complaint attracted s 41(1)(a) of the
Act due to the ongoing grievance procedure. If the arbitration of Ms.
Liddiard’s remaining grievances does not address all of the human rights issues
raised in her second complaint, then she may ask the Commission to reactivate
her complaint after the arbitration process has been exhausted. The
applications for judicial review are therefore dismissed.
II.
Background
[3]
Ms. Liddiard began working at CPC in August
1997. In April 2000, she suffered a back injury that resulted in a permanent,
partial disability. She was away from work for approximately two years, and was
accommodated as a part-time postal clerk when she returned to CPC in 2002.
Court File No. T-1003-15
[4]
In October 2006, Ms. Liddiard submitted a
written internal complaint to CPC alleging that she had endured discrimination
and harassment because of her disability. The complaint was investigated by Ms.
Kelly Edmunds, Officer, Human Rights and Legislated Programs, CPC. In a report
dated March 23, 2007, Ms. Edmunds found that there was no evidence to support
Ms. Liddiard’s allegations that she was subject to discrimination and
harassment.
[5]
In April 2007, the Canadian Union of Postal
Workers [CUPW], as the sole and exclusive bargaining agent for the majority of
CPC’s employees, filed a grievance on Ms. Liddiard’s behalf. CUPW and CPC are
parties to a collective agreement which provides for a grievance and
arbitration process to resolve complaints. CUPW alleged discrimination and
harassment contrary to articles 5 and 56 of the collective agreement. CUPW also
claimed that Ms. Edmunds had not fully investigated Ms. Liddiard’s internal
complaint.
[6]
On April 13, 2007, Ms. Liddiard filed a human
rights complaint against CPC with the Commission in which she alleged
discrimination on the basis of her disability. In August 2007, the Commission
declined to investigate the complaint, citing s 41(1)(a) of the Act. This
provision grants the Commission discretion not to deal with a complaint if it
appears that review or grievance procedures that are otherwise reasonably
available have not yet been exhausted. Following the Commission’s decision, Ms.
Liddiard agreed to pursue the grievance process.
[7]
In March 2008, Ms. Liddiard sought to reactivate
her human rights complaint with the Commission on the ground that the grievance
process was not reasonably available to her. In August 2008, the Commission
again refused to deal with her complaint pursuant to s 41(1)(a) of the Act.
[8]
Ms. Liddiard continued to pursue the grievance
process. Her grievances, together with a further 13 grievances, were referred
to arbitration. The grievances were heard by Arbitrator F.R. Von Veh [the
Arbitrator] between January 25, 2012 and October 28, 2014.
[9]
In May 2012, Ms. Liddiard again asked the
Commission to reactivate her human rights complaint. The Commission declined to
investigate the complaint because the grievance process was still ongoing.
[10]
In January 2014, Ms. Liddiard again asked the
Commission to reactivate her human rights complaint. The Commission invited the
parties’ submissions on the application of s 41(1)(a) of the Act.
[11]
On November 5, 2014, the Arbitrator dismissed
all of Ms. Liddiard’s grievances against CPC. The Arbitrator found that Ms.
Edmunds’ internal investigation had been conducted in a competent and
professional manner, and affirmed her conclusion that there was no evidence to
support Ms. Liddiard’s allegations that CPC had treated her in an unfair or
discriminatory manner.
[12]
Following the Arbitrator’s Award, the Commission
advised the parties that an investigator from the Commission would prepare a “section 40/41 report”. The Commission invited the
parties to state their positions on whether Ms. Liddiard’s human rights
complaint was vexatious within the meaning of s 41(1)(d) of the Act. This
provision affords the Commission discretion to dismiss a complaint if it
appears to be “trivial, frivolous, vexatious or made in
bad faith”.
[13]
On February 25, 2015, the Commission issued its
section 40/41 report. The report summarized Ms. Liddiard’s first human rights
complaint to the Commission, the jurisprudence governing the application of s
40(1)(d) of the Act, the factors that must be considered when determining
whether a complaint is vexatious, the Arbitrator’s Award, and the parties’
submissions. The report dealt with Ms. Liddiard’s criticisms of the
Arbitrator’s Award as follows:
The complainant feels that the arbitrator
was not impartial, that he worked in concert with the employer and union and
did not consider all the evidence before him, and that he was biased. She has
not presented any information to the Commission to support these assertions.
The Commission is not an appeal process for complainants who are dissatisfied
with the outcome of arbitration. In this case, it appears that the arbitration
process was fair.
[14]
The report concluded that the “arbitration procedure had addressed the allegation of discrimination
overall”:
In the present case, a labour arbitrator
with the authority to decide human rights issues dealt with the complainant’s
allegations of adverse differential treatment and harassment based on her
disability. The arbitrator heard testimony over fourteen (14) days from several
witnesses, including extensive testimony from the complainant. He dismissed the
complainant’s grievances. Given that another decision-maker with the authority
to apply the Act has dealt with the allegations of discrimination raised in
this complaint, the complaint is vexatious within the meaning of section
41(1)(d) of the Act and the Commission should not deal with it.
[15]
Ms. Liddiard and CPC provided their respective
responses to the section 40/41 report in March and April 2015.
Court File No. T-1005-15
[16]
On June 10, 2014, Ms. Liddiard filed a second
human rights complaint with the Commission. She alleged that she had endured
discrimination and harassment because of her disability and national origin.
She said that CPC had placed unfavourable reports in her personnel file,
improperly suspended her, and retaliated against her for filing the first human
rights complaint.
[17]
On July 11, 2014, CUPW filed a grievance on Ms.
Liddiard’s behalf alleging that CPC had improperly suspended Ms. Liddiard on
May 20, 2014, and had inappropriately placed unfavourable reports in her
personnel file. The grievance also alleged that CPC had violated numerous
articles of the collective agreement, including articles 5, 54 and 56 relating
to discrimination and harassment in the workplace, and CPC’s “Work Reintegration Program”.
[18]
On August 13, 2014, Ms. Liddiard’s grievances
were referred to arbitration pursuant to the collective agreement. A hearing
was scheduled for January 27, 2015. However, the arbitrator assigned to hear
the grievances was F.R. Von Veh, who had recently rendered the adverse decision
regarding Ms. Liddiard’s previous grievances. CUPW requested an adjournment of
the hearing. It appears that the arbitration has yet to take place.
[19]
CUPW then filed another grievance on Ms.
Liddiard’s behalf. This grievance alleged that CPC had improperly placed
unfavourable reports in Ms. Liddiard’s personnel file, contrary to articles 5,
54 and 56 of the collective agreement. The grievance was referred to arbitration
on September 26, 2014. It appears that the arbitration has yet to take place.
[20]
On September 26, 2014, CPC requested that the
Commission decline to deal with Ms. Liddiard’s second human rights
complaint pursuant to s 41(1)(a) of the Act. CPC argued that Ms. Liddiard had
access to CPC’s internal grievance procedure pursuant to the collective
agreement, and that she should exhaust this avenue of redress before proceeding
with a human rights complaint to the Commission. CPC noted that CUPW had filed grievances
concerning some of the issues raised in the human rights complaint that were
still unresolved.
[21]
Following an investigation, the Commission
issued a section 40/41 report dated March 9, 2015. The report concluded that
the Commission should not deal with the second human rights complaint until Ms.
Liddiard had exhausted the grievance process as required by s 41(1)(a) of the
Act.
[22]
On March 23, 2015, Ms. Liddiard submitted a
response to the report, and stated that the grievance process was not available
to her because she was no longer employed by CPC and no longer a member of
CUPW.
[23]
On May 5, 2015, CPC informed the Commission of
its position that the grievance process remained available to Ms. Liddiard,
even though she had retired. CPC noted that CUPW continued to represent her in
the grievances filed on her behalf, and that an arbitrator had been selected to
hear the grievances.
III.
Decisions under Review
Court File No.
T-1003-15
[24]
By letter dated May 20, 2015, the Commission
advised the parties that it had decided not to deal with Ms. Liddiard’s first
human rights complaint pursuant to s 41(1)(d) of the Act. The Commission
adopted the following conclusion of the section 40/41 report:
The Supreme Court has held that the
Commission must respect the finality of decisions made by other administrative
decision-makers with concurrent jurisdiction to apply human rights legislation
where the previously decided issue was essentially the same as the complaint
before the Commission. In the present case, a labour arbitrator with the
authority to decide human rights issue dealt with the complainant’s allegations
of adverse differential treatment and harassment based on her disability. The
arbitrator heard testimony over fourteen (14) days from several witnesses,
including extensive testimony from the complainant. He dismissed the
complainant’s grievances. Given that another decision-maker with the authority
to apply the Act has dealt with the allegations of discrimination raised in
this complaint, the complaint is vexatious within the meaning of section
41(1)(d) of the Act, and the Commission should not deal with it.
[25]
On June 17, 2015, Ms. Liddiard brought an
application for judicial review of the Commission’s decision not to deal with
her first human rights complaint.
Court File No. T-1005-15
[26]
By letter dated May 27, 2015, the Commission
advised the parties that it had decided not to deal with Ms. Liddiard’s second
human rights complaint pursuant to s 41(1)(a) of the Act. The Commission
adopted the following conclusion of the section 40/41 report:
The union has referred to arbitration two
grievances filed on behalf of the complainant that relate to alleged events
described in the present complaint. These grievances are still in progress. It
appears that the complainant has full access to the grievance and arbitration
process, and that that process will be able to deal with at least some of the
human rights issues raised in this complaint. The complainant ought to exhaust
the other redress procedure that is reasonably available to her. At the end of
the grievance and arbitration process, if the complainant believes that her
human rights concerns have not been fully addressed, she could request that the
Commission reactivate her complaint.
[27]
On June 17, 2015, Ms. Liddiard brought an application
for judicial review of the Commission’s decision not to deal with her second
human rights complaint.
IV.
Issue
[28]
The sole issue raised by these applications for
judicial review is whether the Commission’s decisions were reasonable.
V.
Analysis
[29]
A decision by the Commission not to deal with a
human rights complaint is discretionary and is subject to review by this Court
against the standard of reasonableness (Kwon v Federal Express Canada Ltd, 2014
FC 268 at para 12 [Kwon], citing English-Baker v Canada (Attorney
General), 2009 FC 1253 at para 13). The Commission’s decision is entitled
to deference, and this Court will intervene only if it falls outside of the
range of possible, acceptable outcomes that are defensible in respect of the
facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[30]
With respect to the Commission’s first decision
(Court File No. T-1003-15), Ms. Liddiard argues that the grievance process
is not reasonably available to her, and the Arbitrator’s Award should be
disregarded. She says that the process is biased and fraudulent. She alleges
that Ms. Edmunds, who conducted the internal investigation that was upheld by
the Arbitrator, was incompetent and the Arbitrator should not have accepted her
evidence. She accuses CUPW of failing to represent her, and of colluding with
CPC. She says that she was prevented from calling witnesses and presenting
documents at the hearing. She claims that the Arbitrator was not independent
because his salary was paid by CPC, the process took an unreasonable amount of
time to complete, and the remedies available through the grievance process are
inadequate.
[31]
With respect to the Commission’s second decision
(Court File No. T-1005-15), Ms. Liddiard says that the grievance process
is not reasonably available to her for substantially the same reasons advanced
in relation to Court File No. T-1003-15. In addition, she maintains that she is
no longer a member of CUPW, she no longer pays union dues, and the union is no
longer pursuing any grievances on her behalf.
[32]
Ms. Liddiard has offered little in the way of
evidence to substantiate her allegations. Following a lengthy hearing, the
Arbitrator found that Ms. Edmunds had conducted a competent and professional
investigation into Ms. Liddiard’s internal complaint. Ms. Liddiard’s challenge
to Ms. Edmunds’ competence is based on Directions to the Employer issued under
s 145(1) of the Canada Labour Code, RSC 1985 c L-2 [Directions] in
unrelated matters. These Directions prohibited Ms. Edmunds from assuming
responsibility for the prevention of workplace violence within her own
geographical area, on the ground that she may not be perceived as impartial.
This was not a finding of incompetence in the ordinary sense, but in the
technical sense envisaged by the Directions. In any event, Ms. Liddiard brought
the Directions to the attention of the Arbitrator.
[33]
Contrary to Ms. Liddiard’s assertion, the
Arbitrator’s fees were paid jointly by CPC and CUPW. When asked which witnesses
she was prevented from calling due to CUPW’s alleged failure to properly
represent her interests, she named Dean Roosevelt and her shop steward.
Paradoxically, both of these individuals were representatives of the very union
she said had provided her with inadequate representation.
[34]
The evidence demonstrates that Ms. Liddiard was
responsible for much of the delay in bringing her grievances to arbitration.
CUPW requested an adjournment of the second arbitration to prevent the
grievances from being heard by Mr. Von Veh. I accept CPC’s assertion that CUPW
continues to represent Ms. Liddiard’s interests and to pursue the grievances it
filed on her behalf, notwithstanding that she is no longer employed by CPC. The
evidence confirms that delays are common in the grievance process.
[35]
Paragraph 41(1)(d) of the Act provides that the
Commission shall deal with a complaint unless it appears to the Commissioner
that the complaint is trivial, frivolous, vexatious or made in bad faith.
Paragraph 41(1)(a) of the Act provides that the Commission shall deal with a
complaint unless it appears to the Commissioner that the alleged victim of the
discriminatory practice ought to exhaust grievance or review procedures that
are otherwise reasonably available.
[36]
In declining to deal with Ms. Liddiard’s
complaints, the Commission adopted the conclusions of the investigators who
prepared the section 40/41 reports. Those reports therefore constitute the
Commission’s reasons (Carroll v Canada (Attorney General), 2015 FC 287
at para 28).
[37]
With respect to the first human rights complaint
(Court File No. T-1003-15), the Commission found that there had been a final
decision in another process, namely the grievance and arbitration process. The
Commission noted that the Arbitrator had the authority to interpret and apply
the Act and was an independent third party. The Commission also observed that
there is no significant difference between the labour arbitration process and
the Commission’s complaint process. Both deal with human rights allegations,
can lead to a decision by an independent decision-maker, and can result in
similar remedies. The Commission held that there was no evidence to suggest
that the Arbitrator was in any way biased.
[38]
With respect to the second human rights
complaint (Court File No. T-1005-15), the Commission found that CUPW had filed
numerous grievances on Ms. Liddiard’s behalf and that she had full access to
the grievance process, with which she was well acquainted. The Commission noted
that two grievances dealing with the same events alleged in the complaint were
currently in arbitration. The Commission once again rejected Ms. Liddiard’s
submission that the arbitration process was procedurally unfair or biased.
Furthermore, the Commission observed that the labour arbitrator had
jurisdiction to interpret and apply the Act; would be able to deal with some or
all of the human rights issues raised in Ms. Liddiard’s second human rights
complaint to the Commission; and could award similar kinds of remedies to those
available under the Act.
[39]
A grievance arbitrator has the power and
responsibility to enforce the substantive rights and obligations of human
rights statutes if those rights and obligations were part of a collective
agreement (Parry Sound (District) Welfare Administration Board v O.P.S.E.U.,
Local 324, 2003 SCC 42). In this case, the Arbitrator’s Award addressed 15
grievances that were filed by CUPW on Ms. Liddiard’s behalf. There were 14 days
of hearings, and Ms. Liddiard testified in support of the grievances. The
reasons provided by the Arbitrator were lengthy and examined all of the
evidence, including conflicting evidence. The Commission concluded that “a full and careful review of the Award shows that the
arbitrator dealt with all of the allegations in the present complaint, and he
dismissed them as having no merit”.
[40]
I am satisfied that the Commission properly
considered the Arbitrator’s decision and his findings of fact before
determining that Ms. Liddiard’s first human rights complaint attracted the
application of s 41(1)(d) of the Act (Canada Post Corp v Barrette,
[2000] 4 FC 145 at para 28, [2000] FCJ No 539 (Fed CA)). The Commission
reasonably concluded that the substance of Ms. Liddiard’s complaint had
already been dealt with by another decision-maker with the authority to rule on
human rights issues under the Act.
[41]
I am also satisfied that the Commission
reasonably concluded that Ms. Liddiard’s second human rights complaint
attracted s 41(1)(a) of the Act due to the ongoing grievance procedure. If the
arbitration of Ms. Liddiard’s remaining grievances does not address all of the
human rights issues raised in her second complaint to the Commission, the
Commission has stated that she may return to the Commission after the
arbitration process has been exhausted. Furthermore, counsel for CPC
acknowledged that Ms. Liddiard may ask the Commission to reactivate her second
human rights complaint at any time, on the ground that the grievance process is
no longer available to her (assuming that she is able to adduce evidence in
support of this assertion). This should alleviate any risk that the grievance
procedure may be inadequate or untimely in addressing Ms. Liddiard’s concerns (Bagnato
v Canada Post Corp., 2016 FCA 40 at para 7).
VI.
Conclusion
[42]
The Commission’s reasons for declining to deal
with both of Ms. Liddiard’s human rights complaints are intelligible,
transparent and justified, and both decisions fall within the range of
possible, acceptable outcomes that are defensible in respect of the facts and
law. Both applications for judicial review are therefore dismissed.
VII.
Costs
[43]
CPC seeks costs, but did not submit a draft Bill
of Costs or make substantive submissions regarding the quantum of costs, as
contemplated by this Court’s Notice to the Parties and Profession dated April
30, 2010. Ms. Liddiard is no longer employed by CPC, and she appears to have
limited means. Nevertheless, CPC has been wholly successful in these
applications for judicial review, and is therefore entitled to costs. Having
regard to all of the circumstances, I exercise my discretion to make a single
award of costs in the fixed amount of $750.00, inclusive of disbursements, for
both applications together.
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