Docket: T-769-12
Citation:
2016 FC 988
[ENGLISH
TRANSLATION]
Ottawa, Ontario, August 30, 2016
PRESENT: The Honourable
Mr. Justice Roy
|
BETWEEN:
|
|
ÉRIC MANFOUMBIMOUITY
|
|
Applicant
|
|
and
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
Mr. Manfoumbimouity [the applicant] has
initiated several proceedings before this Court. This time, it is an
application for judicial review of a decision rendered by the Human Rights
Commission [the Commission], which found that the complaint submitted by the
applicant was trivial, frivolous, vexatious or made in bad faith, under the
provisions of section 41 of the Canadian Human Rights Act, R.S.C.,
1985, c. H-6 [the Act]. According to the Commission, the matter of the
complaint submitted to it had already been adjudicated upon elsewhere.
[2]
As a result, the Commission did not rule on the
complaint. The applicant therefore seeks judicial review before this Court
pursuant to section 18.1 of the Federal Courts Act, R.S.C., 1985,
c. F-7. As we will see, this case is particularly complex.
II.
Overview
[3]
The events leading to this application for
judicial review occurred over quite a short period in early 2007. The
complaint before the Commission explicitly states that the events occurred
between April and June 2007, even though the applicant participated in the
training provided between January and June 2007. At the time, the
applicant was attempting to join the ranks of the Canadian Armed Forces [the
Forces].
[4]
During his training period, the applicant complained
that he had been the subject of an investigation conducted by the military
police based on a denunciation by another recruit, according to which the
applicant and another black person, also a recruit, had consumed cocaine. The
applicant was also displeased with the way in which he was released from the
Forces. According to the Commission, these issues have already been adjudicated
upon, making the complaint frivolous or vexatious.
[5]
As we will see, it was not easy to determine the
scope of the complaint and what it involved. According to the applicant, he had
been the target of an unfounded investigation because of his race, and his
involuntary release had been tainted by racism. In addition, an instructor
apparently treated him so unfairly that his treatment amounted to racial
discrimination. What further complicated matters was the applicant’s propensity
to extend his allegations beyond the scope of the complaint as submitted. This
case must be reviewed based on the very specific facts that provide the basis
for his complaint before the Canadian Human Rights Commission. The various
grievances that the applicant developed over time were not before the
Commission. He would have wanted the Commission to review human rights
allegations in the broad sense whereas his complaint itself had a much narrower
focus. The judicial review proceedings must be limited to the Commission’s
decision not to rule on the complaint submitted. It is essential to
properly define what the complaint that was submitted involves in order to
determine the framework of this application for judicial review. The review
will respond only to the allegations made. Simply put, the judicial review is
limited to the Commission’s decision, which itself is limited to the complaint
it was addressing.
[6]
Because the Commission is charged with ruling on
any complaint before it, it would be difficult to see how the Commission could
be criticized for limiting itself to the sole complaint before it, and not
considering the additional elements that the applicant would have wanted to
submit after the fact. It is therefore the complaint that constitutes the basic
framework upon which the application for judicial review of the Commission’s
decision may be addressed.
III.
The complaint
[7]
The complaint that was ultimately submitted to
the Commission has a certain history of its own, which is worth briefly
relating because it helps understand the confusion created by the applicant.
[8]
The applicant attempted to submit an initial
complaint on February 11, 2008. A standard letter explaining the required
format, which the applicant failed to use, provided the rationale for refusing
to receive the complaint on March 5, 2008. The letter also indicated that
the Court can refuse to hear a complaint if other remedies are available.
[9]
The second complaint is dated April 18,
2008. A note dated May 5, 2008, in the Commission’s files indicated that
this second complaint was also inadmissible because it appears that the
reference in the complaint form to appended documents increased the number of
pages. As a result, the complaint exceeded the number of pages allowed. A
complaint must be stated in three pages. The note specified that there was some
doubt as to whether [translation] “the complainant will send us his new form.” The applicant
submitted a third complaint.
[10]
The Commission officer asked the applicant [translation] “why
he did not discuss his release.” He said [translation] “the reason for his
release did not appear to be related to his race and colour” (memo dated
May 5, 2008). However, in the complaint leading to the application for
judicial review, the applicant refers to his release, but does not say how his
race was involved.
[11]
The applicant submits a new complaint. This
third complaint form, dated June 4, 2008, included two and a half pages.
The complaint presented two relatively specific allegations:
a)
First, the applicant related some of the twists
and turns involved in an investigation conducted by the military police
pursuant to a denunciation made by another recruit, according to which the
applicant allegedly consumed cocaine. The applicant alleged racial profiling
without providing any details. According to the complaint, it appears that the
events that the applicant was complaining about occurred on April 23,
2007. His subsequent attempts to ascertain the outcome of the investigation
were unsuccessful according to his complaint.
b)
The other part of the complaint before the
Commission involved his release from the Forces. The complaint provided some
details on the interaction between the applicant and a sergeant, from
June 22 to 28, 2007, which led to the applicant’s release. The
sergeant’s recommendation was adopted by the Commanding Officer of the Canadian
Forces Leadership and Recruit School. The applicant left the military base on
July 30, 2007. On the same day, he submitted a grievance, which was
ultimately resolved on March 2, 2011, with the Chief of Staff’s decision.
The complaint itself contains a specific
allegation regarding racial discrimination or profiling with respect to the
military police investigation. The complaint alleges that the symptoms
experienced by the applicant (sniffles, glassy eyes, handkerchief in hand,
trips to the washroom) arouse suspicion if the person is black, but are easily
explained away if the person is white. With respect to his mandatory release
from the Forces, the applicant did not make any specific allegations of racial
discrimination. On the contrary, the applicant only challenged the grounds used
to force his release: failure to pass practical exams, lack of physical
aptitude, problems with his attitude and difficulty adapting to military life.
The applicant used the last of the three pages allocated to him to indicate
that his attempts to find employment elsewhere in the Forces or within police
forces were met with rejection [translation]
“given my reputation.”
[12]
But the case would not end there. On the same
day, June 4, 2008, the applicant wrote to the Commission to [translation] “add
important information regarding my statement that I mailed you this morning
(June 4, 2008).” This information consisted of two complaints
against a sergeant, which the applicant submitted after his mandatory release
on June 28, 2007. These complaints alleged that the instructor harassed
the applicant by often telling him in front of his platoon that he wanted the
applicant to leave the Forces, and that an attempt was made to force the
applicant to shave although he had skin problems. The applicant said these
complaints were destroyed. There is no evidence. The same person at the
Commission who had communicated with the applicant on May 5, communicated
with him again after June 4. A note in the files dated June 16, 2008,
indicated that the applicant had been notified that his letter dated June 4
could not be added to the form dated June 4. The applicant was then
offered the option to add the new information in the remaining space on the
form. Although the complaint form was not adjusted, as the applicant would have
liked, [translation] “it was agreed that a note would be placed in the files to
explain why the additional information provided by the complainant would not be
attached to the complaint.” As a result, the allegations are not part of
the docket before the Commission.
[13]
The only complaint addressed by the Commission
was the one dated June 4, 2008. This was the complaint that complied with
the Commission’s requirement and upon which the Commission would rule on March 7,
2012. The evidence on the record is that the addition made on June 4 was
not part of the complaint submitted following the applicant’s decision not to
modify his complaint again. Nevertheless, the applicant would continue to claim
throughout these proceedings that these additions were pursuant to complaints,
which were deemed inadmissible due to irregularities or other grievances.
[14]
A decision not to rule on this complaint because
it was inadmissible under paragraph 41(1)(d) was rendered. This decision
regarding this sole complaint is now being challenged in judicial review.
[15]
The June 4, 2008 complaint before the
Commission was suspended under paragraph 41(1)(a) of the Act to allow the
applicant to exhaust “grievance or review procedures
otherwise reasonably available.” The complaint was reactivated on May 5,
2011, after three military proceedings had rendered their decisions. I note
that reactivating the complaint does not provide the option to add allegations.
This simply means that the suspended complaint, which had therefore not been
heard, would now be heard.
IV.
Decision for which judicial review is sought
[16]
The decision of the Commission at issue here was
rendered on March 7, 2012 (but sent on March 14, 2012), but was only
received by the applicant a few days later. As a result, the application for
judicial review was initiated on April 16, 2012. The Notice of Application
stated that the purpose of the application was related to the fact that the
applicant was allegedly disadvantaged during his employment and that he was
subjected to harassment from his supervisors in the Forces. The application for
judicial review sought judicial review of two specific allegations:
- First, the applicant asked this Court that his allegations of
racism / racial profiling against his chain of command (i.e. at least his
allegations of racism / racial profiling against Master Corporal Legault
and Sergeant Ouellette) be studied by the Canadian Human Rights
Commission.
- Second, the
applicant asked this Court that his allegations of racial profiling
against Police Officer Deschamps be studied by the Canadian Human
Rights Commission.
[17]
Before we go any further, I would like to make a
comment. This application for judicial review, which was repeatedly amended,
and this case are both plagued by the same problem. The applicant goes beyond
the scope of the complaint that he submitted to the Commission and which was
adjudicated upon. He complains of having been harassed by his [translation] “chain
of command”; however, a very generous reading of his complaint before
the Commission reveals no such allegations. The addition of alleged actions of
a master corporal was not appropriate with respect to the complaint as
submitted. The purpose of an application for judicial review is not to broaden
the debate before the administrative tribunal. In this respect, the Court must
deal only with the allegation in the application for judicial review and ignore
further allegations.
[18]
The submissions made by the applicant after he
received the initial Report on Sections 40/41, each of which are at least
10 pages long, obviously discuss the military police investigation, but
they also seek to broaden the scope of the complaint to deal with incidents
that are not part of the allegation that he made. However, the summary of the
complaint is very clear and its contents are not contested.
[19]
It seems the applicant repeatedly complains
that, despite the complaints and grievances he has submitted, he says, all the
allegations of discrimination were not studied or were not studied adequately
by the Forces. According to the applicant, the Commission’s refusal to render a
decision would be unreasonable. However, what needs to be done, is to
demonstrate that the decision of the Commission, which is simply studying the
complaint before it, is unreasonable when it finds that the complaint,
and nothing else, is trivial, frivolous, vexatious or made in bad faith. The
complaint before the Commission constitutes the limits of the action that the
Commission may take. The Commission could not have made an error by refusing to
examine new allegations presented during submissions on its Report on
Sections 40/41, which deals only with the complaint as submitted. The
applicant was largely exceeding the scope of his own complaint. It seems
obvious to me that he wanted to further confront the Forces. But the forum,
which the Commission constitutes, is not the right one if the applicant exceeds
the scope of his complaint. This approach needlessly complicated the case. We
will deal only with the decision for which judicial review is sought, whose
scope is defined by the complaint as submitted before the Commission.
[20]
A significant portion of the submission
delivered by the applicant’s counsel dealt with the allegations made in the
complaints, which were deemed inadmissible, and the submissions made by the
applicant regarding the Report on Sections 40/41, which do not deal with
the complaint, but seek to broaden the debate. This attempt failed throughout
every step of the proceedings and also failed before this Court.
[21]
The text of the March 7, 2012 decision
reads as follows:
[translation]
The complainant proceeded with his
allegations of discrimination through the impleaded party’s review procedures.
These procedures determined that the allegations of discrimination had no
merit. Nevertheless, the complainant managed to win a favourable change in the
release category. In addition, the remedies requested by the complainant in the
grievance before the Chief of Staff did not include a request to be readmitted
to the Forces. Thus, there do not seem to be any other issues that could be
more appropriately dealt with by the Commission.
[22]
As is often the case, this decision by the
Commission is in fact the confirmation of the investigation report prepared and
completed on October 27, 2011, and on which submissions were presented by
the parties. The report constitutes the reasons for the decision (Vos v.
Canadian National Railway Company, 2010 FC 713). Largely based on
Canada Post Corp. v. Barrette, [2000] 4 FC 145, the
investigator was of the view that having first examined the decisions of the
other organizations, because the allegation before the Commission had undergone
internal review within the Forces, it was appropriate to consider the complaint
to be trivial, frivolous, vexatious or made in bad faith, in accordance with
the provisions of paragraph 41(1)(d) of the Act. This paragraph reads as
follows:
|
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
|
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 :
|
|
. . .
|
[…]
|
|
(d) the complaint
is trivial, frivolous, vexatious or made in bad faith; or
|
d) la plainte est
frivole, vexatoire ou entachée de mauvaise foi;
|
[23]
Based on the applicant’s complaint, the
investigator understood that the applicant was of the opinion that [translation] “despite
the fact that he had exhausted three settlement procedures, there were still
some issues and fundamental allegations that had not been addressed”
(paragraph 15 of the Report on Sections 40/41). Three decisions
before the military administrative proceedings were at issue according to the
complainant before the Commission, the applicant in this case. According to the
complainant, other allegations were not addressed and those that were addressed
were not dealt with adequately. How the allegations in the complaint were not
dealt with adequately remained very unclear.
[24]
The three proceedings are those before the
Canadian Forces Provost Marshal, the Military Police Complaints Commission of
Canada [the Complaints Commission] and the grievance submitted to the Chief of
Staff.
A.
Canadian Forces Provost Marshal (August 20,
2008)
[25]
The complaint before the Provost Marshal was
made one year after the investigation conducted by the military police and the
applicant’s departure from the Forces. The charges against the investigator and
a military police officer involved in the investigation they conducted are
presented over several pages.
[26]
With respect to the Canadian Forces Provost
Marshal, the Commission investigator considered that two allegations were under
review. First, there was a complaint that an investigation conducted by the
military police pursuant to a denunciation, according to which the applicant
and a colleague who was also a black person allegedly consumed cocaine,
constituted a form of racial profiling. The second allegation suggested that
the investigation to which the complaint was subjected was inadequate and
unwarranted. With respect to the first allegation, the Provost Marshal’s
decision stated that there was no racial profiling because the police officer
had acted in a logical, non-discriminatory manner toward the two black suspects
under investigation by deciding to interview them. As for the second
allegation, according to the Provost Marshal, the investigation was warranted
and established the truth in favour of the two persons who were interviewed. It
determined that no offence had been committed.
B.
Military Police Complaints Commission of Canada
(December 22, 2009)
[27]
Not satisfied, the applicant requested that the
complaint submitted to the Provost Marshal be reviewed. His complaint stated
that certain events had not been considered by the Provost Marshal.
[28]
The Complaints Commission reviewed the Provost
Marshal’s findings in a 19-page document. The Complaints Commission stated that
it was satisfied that the military police had conducted an investigation
pursuant to suspicions reported by one of the applicant’s colleagues and that
the scope of the investigation was reasonable, not having been influenced in
any way by abusive considerations such as the suspect’s race. As the Commission
noted, the denunciation, and therefore the investigation, was based on the
observation of symptoms, not racial factors. When allegations were made that a
crime had been committed, the military police was required to investigate
pursuant to its own policies and the policies of the Canadian Forces Leadership
and Recruit School where the applicant had enrolled. As a result, racial
profiling could not have been at issue. In other words, the investigation had
to be initiated because of the type of allegation in a military context.
Contrary to the allegations in the complaint before the Commission on June 4,
2008, the Military Police Complaints Commission of Canada’s review found that
the applicant had in fact been advised of the results of the investigation
because the applicant received this information himself from a master corporal
in the days that followed.
C.
Chief of Staff
[29]
Finally, four paragraphs in the report prepared
by the Commission investigator were dedicated to reviewing the grievance
submitted to the Chief of Staff. The grievance involved a very generic
allegation regarding the circumstances surrounding the decision to release the
applicant. The assistance that the applicant should have received to prepare
for a Progress Review Board [meeting] leading to his release was apparently not
provided. The remedy sought was that the involuntary release be overturned and
the Initial Assessment Period (IAP) be credited. Because the applicant was not
seeking to re-enrol, the option to re-enrol was not requested as a remedy. The
applicant now complained that his [translation]
“chain of command” was guilty of having
subjected him to harassment and racial conduct. The applicant demanded that he
be granted $1.9 million in damages, which he was in fact demanding in a
lawsuit initiated in this Court.
[30]
After reviewing the events that occurred at the
end of June 2007, which led to the applicant’s release, the Chief of Staff
believed that some incidents involving the applicant were not as serious as the
instructors had indicated in June 2007. According to the investigator, the
Chief of Staff’s March 2, 2011 decision found that the Progress Review
Board (PRB) had been convened prematurely, and this part of the grievance was
granted. With respect to the harassment complaint that the applicant alleged
that he had submitted, the Chief of Staff was of the view that the burden of
demonstrating that a formal complaint had been made in writing had not been
discharged, and he could not determine whether the rules in force had been
followed. No evidence of such a complaint was found. The remedy granted sought
to redress the involuntary release, since the applicant indicated he no longer
wanted to enrol: the file was therefore amended to make the release voluntary
and to have the Initial Assessment Period credited. In the investigator’s
opinion, [translation] “this human rights complaint is based on allegations of
unfavourable treatment during employment and termination of employment, not
harassment. As a result, the Commission cannot review this allegation.” (Report
on Sections 40/41, paragraph 23).
[31]
At any rate, he came to the following conclusion
in paragraph 24 of his report:
[translation]
24. The decision was rendered on March 2,
2011—some remedies were granted: the Initial Assessment Period qualification
was granted, and the release item was to be changed (change the reason from Not
otherwise advantageously employable to On Request – Other Causes). Regarding
the issue of compensation, the decision indicated that the Chief of Staff did
not have the authority to grant financial compensation or an ex gratia
payment.
[32]
The investigator subsequently produced
paragraph 26 of his report as a review, which he entitled “General comments”:
[translation]
26. This case contains a lot of
information, some of which is contradictory, including information discussed in
the previous paragraphs of this report. There are also gaps in some of the
information: for example, on how this case began as a review of military police
conduct, which led to a decision to confirm the complainant’s release from the
Forces. Nevertheless, with respect to the human rights allegations that the
complainant raised during the internal complaint proceedings, it seems that the
decision-makers studied these allegations. Although the human rights issues did
not undergo the most thorough review possible, the review was adequate. The
same can be said of the results: although the complainant did not receive all
the remedies he sought, he received some, including an amendment of his release
category.
In conclusion, paragraph 27 of the
Report on Sections 40/41 was endorsed by the Commission and was reproduced
in paragraph 21 of these reasons for the decision.
V.
The applicant before this Court
A.
Scope of the application
[33]
The applicant’s submissions are limited by his
complaint before the Commission. Repeated attempts to expand the scope were
unsuccessful. He argues that the Commission’s decision must be quashed because
all the allegations of discrimination were not studied in the review procedures
followed by the Forces. If they were studied, he claims the study was inadequate.
However, only what is validly before the Commission, i.e. the complaint dated
June 4, 2008, can be cited.
[34]
However, the Commission’s decision implies that
the complaint before the Commission is trivial, frivolous, vexatious or made in
bad faith and that this is the sole decision upon which a judicial review can
be performed by this Court. It is our understanding that the applicant would
have wanted other human rights allegations to be studied because they had not
been examined by the Forces. But what makes this conclusion eligible for a
judicial review whose scope is circumscribed by a complaint that the Commission
had deemed to be frivolous or vexatious?
[35]
The applicant has acted without counsel
throughout a large part of this case. Counsel has only recently started to act
on his behalf, and we can understand to a certain extent that some time has
elapsed between the complaint and the Notice of Application signed by the
applicant himself and the memorandum of fact and law signed in November 2015.
At any rate, counsel must deal with the existing complaint, which defines the
application before this Court.
[36]
A significant portion of the memorandum of fact
and law is dedicated to a narrative of the facts, which is based on affidavits
that were deleted from the docket following judicial decisions. It is a ploy
used all too often in this case. As previously indicated, this applicant has
constantly attempted to broaden the debate beyond the scope that he set out in
his complaint as submitted. The same approach can be observed in the memorandum
of fact and law. We also heard it during oral submissions. The Commission gave
the applicant two opportunities to comment on the report (directly on the
report and on the comments made by the Forces’ representative), which should
eventually be used by the Commission to render its decision under
paragraph 41(1)(d). The report described the complaint; it was absolutely
clear. The applicant made submissions (limited to 10 pages each). They
were not so much comments on an investigative report regarding a specific
complaint as completely new, broader allegations, with the second series of
submissions even alleging instances of concealment and irregularities. There
were no such allegations in the complaint discussed in the Commission’s report.
The applicant acted as though the complaints, which were inadmissible because
they were noncompliant, were before the Commission.
[37]
With respect to the remainder of the applicant’s
submissions, they appear to me to have some relevance in relation to his
original complaint that the military police investigation was tainted with
racism. They sought to point out errors during the police investigation;
however, most of these errors were of little probative value with respect to the
allegation of racism. The applicant disagrees with the findings of the Provost Marshal
and the Complaints Commission. The applicant argues that the military police
investigation should have been conducted differently or not at all. But that is
not the purpose of the judicial review before this Court.
[38]
The Canadian Human Rights Commission’s decision
indicated that it [translation] “had studied the report that was previously disclosed to you,
as well as all related submissions sent afterwards.” The applicant
argued that the investigator’s initial report had not been amended after he had
provided his submissions. This is yet another example of a refusal to see that
the submissions were inadmissible. Clearly, the applicant’s attempt to broaden
the debate failed, as it should have, because this was not the complaint that
the Commission was supposed to review.
[39]
With respect to the Commission’s decision
itself, the applicant argued that his complaint was not trivial, frivolous,
vexatious or made in bad faith because the Forces’ internal bodies did not
arrive at this conclusion (amended memorandum of fact and law,
paragraph 25). If I understand this statement, the complaint submitted
before the Commission was not frivolous or vexatious because the Forces’
internal bodies themselves did not find that the allegations made before them
were frivolous or vexatious. The applicant adds, without ever articulating an
argument, that the Commission did not render an adequate decision because it
based its conclusion on an erroneous finding of fact.
[40]
As I have attempted to explain, judicial review
proceedings must be conducted with rigour in order to render a decision, based
on contradictory debate, on the issues that are raised. The parties, as well as
the Court, must operate within the framework created by the proceedings. It
would be unfair to move the goalposts along the way. By adding facts and
allegations, the applicant fails to comply with the procedural framework that
must prevail.
[41]
It is the Commission’s ruling on this complaint
that is subject to judicial review. The Commission cannot be criticized for not
exceeding the scope of the complaint that was submitted. In fact, it could be
criticized for going beyond it. Its role is not to study all the human rights
issues that the applicant would now want to raise. He is limited to the
complaint that he made. As the copy of the minute book submitted by the
respondent eloquently demonstrates, this Court rejected the applicant’s
attempts to submit affidavits or add allegations. Even the amended memorandum
of fact and law also refers to evidence, which, incidentally, was rejected. The
respondent’s counsel submitted an amended memorandum of fact and law to the
Court, in which many passages, covering part or all of 21 of the 91 paragraphs,
had been redacted.
[42]
It is therefore essential that we limit
ourselves to the allegations made in the complaint, which were adjudicated upon
by the Commission. The applicant is entitled to complain about this
adjudication, and this is the sole issue upon which this Court can be asked to
adjudicate. The applicant must argue that the decisions of the military
proceedings did not deal with the allegations at issue in his complaint or, if
they did, they were dealt with so inadequately that the Commission did not act
reasonably when it stated that [translation]
“the complainant proceeded with his allegations of
discrimination through the review procedures” and that there [translation] “do
not appear to be any outstanding issues that could be more appropriately dealt
with by the Commission.” In other words, the Commission’s decision could
not be reasonable if only human rights issues raised by the complaint
were not dealt with adequately.
B.
Positions of the parties
[43]
A large number of pages in the applicant’s
memorandum of fact and law focused on discussing the military police
investigation into allegations of cocaine possession involving the applicant
and another black recruit. I counted no fewer than 31 paragraphs on more
than 16 pages dealing with various statements presented as errors of fact.
A large number of these statements are found in the additional submissions made
by the applicant regarding the Commission investigator’s report.
[44]
The applicant also makes general allegations of
acts of discrimination during his training. Not only are the allegations not
covered by the complaint that was submitted, they are sorely lacking in detail.
They are general allegations, even in the specific context of his release. I
reiterate that the applicant stated that the reasons for his release were
apparently not based on race (memo dated May 5, 2008). It would therefore
not be surprising that his June 4 complaint before the Commission makes no
mention of it. Throughout the proceedings, the emphasis was on other
allegations, beyond the scope of the complaint.
[45]
It became very clear in reply that the applicant
considered himself authorized to deal with other allegations that were not part
of the June 2008 complaint. The applicant argued that he could add
[allegations] while he was reactivating the complaint after it had been
suspended. According to the applicant, submissions that became new allegations
were admissible. He did not elaborate on how such new allegations may not have
been inadmissible.
[46]
With respect to the respondent, he also spent a
lot of time in his memorandum of fact and law on considerations whose relevance
to the issue at hand was very tenuous. There were complaints regarding the
prolixity of proceedings. The respondent insisted that the Court consider only
the case as submitted before the Commission. In matters of judicial review, the
Court must limit itself to reviewing the legality of the decision that was
rendered, not its appropriateness. Therefore, the only evidence that can be
germane to the judicial review is evidence that had been considered by the
administrative tribunal. In addition, the respondent complained that the
applicant did not submit any evidence or arguments demonstrating that the
Commission had not examined every aspect of the complaint relating to the Act.
The applicant complained of an inadequate study on the part of the Commission
without providing any clarifications or details.
[47]
Finally, the respondent inferred that the
Commission had considered the evidence submitted to it and that the issue that
the applicant was actually complaining about was the insufficient weight that
the Commission had granted it, according to him. Based on Construction
Labour Relations v. Driver Iron Inc., 2012 SCC 65, at
paragraph 3, [2012] 3 SCR 405, the respondent submitted
that the Commission did not have to consider and comment upon every argument
raised by the applicant.
VI.
Standard of review
[48]
The reasonableness standard applies to review of
a Commission’s decision to refuse to proceed with a complaint because it is
considered trivial, frivolous, vexatious or made in bad faith. Not only is the
case law of this Court consistent in this matter, but the Federal Court of
Appeal has now disposed of this issue: Bergeron v. Canada (Attorney
General), 2015 FCA 160, at paragraph 41 [Bergeron],
and Public Service Alliance of Canada v. Canada (Attorney General), 2015 FCA 174.
With regard to the duty of procedural fairness, the applicable standard is
correctness (Mission Institution v. Khela, 2014 SCC 24, at
paragraph 79, [2014] 1 SCR 502).
VII.
Analysis
[49]
For a short time in 2007 (from January to July)
the applicant attempted to join the Forces. His attempt was unsuccessful. The
applicant said he had been subjected to discrimination, and in particular, that
he had been subjected to an inappropriate and abusive military police
investigation. He alleged that he had been subjected to harassment and the
military police investigation because of his race, which meant that he had been
subjected to racial profiling.
[50]
The applicant’s submissions at this stage are
not germane to the decision made to consider his application frivolous or
vexatious. He is seeking to plead the case on its merits, as though this Court
could simply agree with the applicant because it prefers a point of view to
that of the Commission. The applicant needs to demonstrate to the Court that
the Commission’s decision to declare his complaint frivolous or vexatious is
not reasonable, within the meaning of administrative case law, and more
specifically, within the meaning of paragraph 47 of the Supreme Court of
Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 SCR 190:
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.
As Mr. Justice Binnie says on
behalf of the majority in Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, at paragraph 59, [2009] 1 SCR 339:
. . . as long as the process and the outcome
fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
[51]
In Bergeron, cited above, the Federal
Court of Appeal explained the burden to be met by the applicant for judicial
review of a decision made under paragraph 41(1)(d) of the Act:
[45] In the case at bar, the range—or
as some cases put it, the margin of appreciation afforded to the Commission—is
quite broad owing to the factual and policy-based task of the Commission: Canada
(Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56,
455 N.R. 157, at paragraphs 90 to 99. The Federal Court was
correct to state (at paragraph 39) that the Commission gets “great
latitude” when courts review decisions such as this. This Court has previously
said that very thing: Sketchley v. Canada (Attorney General), 2005 FCA 404,
[2006] 3 F.C. 392, at paragraph 38 (screening decisions
under section 41 are to be “reviewed with a high degree of deference”).
This Court is therefore seeking the argument according to which the decision
rendered under paragraph 41(1)(d) is unreasonable, considering the
great deference due to the Commission in these matters.
[52]
It appears to me that this approach is confirmed
by the Supreme Court of Canada’s recent decision in Wilson v. Atomic Energy
of Canada Ltd., 2016 SCC 29, where paragraph 22 of the
majority decision reads as follows:
[22] The reason for the wide range is,
as Justice John M. Evans explained, because “[d]eference . . . . assumes that
there is no uniquely correct answer to the question”: “Triumph of
Reasonableness: But How Much Does It Really Matter?” (2014), 27 C.J.A.L.P.
101, at p. 108). The range will necessarily vary. As Chief Justice
McLachlin noted, reasonableness “must be assessed in the context of the
particular type of decision making involved and all relevant factors” and
“takes its colour from the context”: (Catalyst Paper Corp. v. North Cowichan
(District), [2012] 1 S.C.R. 5, at paras. 18 and 23,
citing with approval Canada (Citizenship and Immigration) v. Khosa,,
[2009] 1 S.C.R. 339, at para. 59).
[53]
The result is, in my opinion, that the applicant
will have to demonstrate that despite great latitude, the decision under review
is not within a range of possible acceptable outcomes which are defensible in
respect of the facts and law. That is the burden. In our case, the applicant
initially simply stated that his complaint was not made in bad faith or
vexatious because the internal bodies of the Forces made no such finding.
However, that is not the issue. It is not because the complaint had already
been found vexatious by another instance that it would be vexatious before the
Commission. Conversely, it is not because the Commission would come to the
conclusion that the complaint is vexatious that it was vexatious when the
internal bodies of the Forces studied the issue. Rather, the complaint became
vexatious or frivolous because the case had already been considered elsewhere.
[54]
As the respondent noted, compelling evidence was
not provided before this Court that the Forces’ internal proceedings did not
deal with the allegations of discrimination related to the complaint, including
the fact that an investigation regarding the applicant had been initiated and
conducted by the military police. The conclusion to which the Commission came
must be demonstrated to fall outside a range of possible acceptable outcomes
which are defensible in respect of the facts and law with respect to the
complaint submitted in this case. The question is then whether in the event
where a case has already been resolved based on another proceeding, is the
Commission acting reasonably when it finds that a new proceeding should not be
initiated? The applicant had to demonstrate that it was not reasonable.
[55]
We can start with the argument regarding the
military police investigation conducted pursuant to an allegation made by one
of the applicant’s colleagues concerning cocaine use.
A.
The military police investigation
[56]
The applicant tried to point out errors, which
he described as errors of fact, to complain about the military police
investigation conducted pursuant to a denunciation made by another recruit. Six
main errors were alleged:
•
The complainant did not have specialized
knowledge of drug screening; rather, his knowledge of the symptoms of cocaine
use was based on observations made throughout the years.
•
There were no eye witnesses.
•
The symptoms observed were caused by an allergy,
not cocaine use.
•
Once the investigation was launched, it had to
continue.
•
There were complications regarding a third black
person.
•
The applicant was “invited”
to an interview with the military police investigators; it was apparently
indicated that it would be preferable to hold the interview at the military
police offices to avoid contacts with the other recruits. The applicant claims
that the invitation to report to the military police offices was actually made
to obtain an incriminating statement. According to him, the invitation was a
detention.
[57]
The applicant referred to racial profiling as
the basis for a criminal investigation, which did not lead to any charges.
Therefore, the denunciation was tainted with racism; the fact that an
investigation was initiated and proceeded, appeared to arise from racism. If I
understand correctly, even the aggressive nature of the investigation was
tainted with racism, according to the applicant.
[58]
However, the reviews conducted by the Provost
Marshal and the Military Police Complaints Commission of Canada both examined
the allegations of racial profiling. Both found that the actions of the
military police essentially complied with standard practices.
[59]
Based on these reviews, the Commission stated
that an additional review would in fact constitute a review that had now become
frivolous or vexatious: the case had been reviewed twice. As noted above, the
Commission has a great deal of latitude in these matters. It has solid
expertise in human rights matters. It is not too much to say that the
Commission’s vocation is to address discriminatory practices (duties and
functions of the Commission, subsection 27(1) of the Act). The Act also
stipulates that the Commission may initiate a complaint (subsection 40(3)
of the Act). A party must discharge a heavy burden to demonstrate that the
Commission did not act reasonably in its decision to consider that racial
profiling complaints in a police investigation have been adjudicated upon
elsewhere, which engages paragraph 41(1)(d) of the Act. No discretion is
absolute. However, the discretion exercised by the Commission is certainly very
broad, for which it deserves a high degree of deference as stated in Bergeron,
cited above.
[60]
To meet this burden, the applicant attempted to
point out errors of fact in the reports produced by both bodies. With respect,
I am afraid that the applicant cannot see the forest for the trees. If there
were errors during the investigation, which was not demonstrated, this does not
prove that the investigation was launched and conducted based on a prohibited
ground of discrimination, including the suspect’s race, national or ethnic
origin or colour.
[61]
It is incontrovertible that a serious
allegation, especially in the Forces, such as possession and use of cocaine,
was made. It involved black persons. It would have been inappropriate for the
military police not to have looked into this allegation. That the applicant was
suspected of being the person presenting the symptoms noted by the complainant
is reasonable. Moreover, he does not deny having had these symptoms. The
investigation demonstrated that these symptoms were in fact caused by the
applicant’s allergies. From this moment, the applicant was no longer a suspect.
[62]
I see nothing unseemly in conducting a police
investigation, providing, of course, it ends when the reasons for starting it
no longer apply. In other words, the investigation cannot become a witch hunt
unless it is suspected of being conducted for ulterior motives. When the
investigation demonstrates that the allegation is baseless, it must obviously
end. If it were to continue needlessly, it would be reasonable to assume there
were ulterior motives. However, I saw nothing of the sort, and more
importantly, neither did the Commission charged with reviewing these issues.
[63]
The reviews conducted by the Provost Marshal and
the Complaints Commission came to the same conclusion. The errors of fact, if
there are any, which the applicant is complaining about, do not change the
picture of the evidence in any way. An allegation had to undergo a serious
investigation conducted swiftly in accordance with standard practices. The fact
that the investigation found that the applicant was not involved in the
commission of a criminal offence is not a reason to characterize it as being
motivated by racism. It would also have been necessary to demonstrate that
there were serious indications of illegal motivation to launch an
investigation. I saw no evidence of such despicable motivation. As the
applicant’s counsel said, we cannot expect to see racist motivations in broad
daylight. However, an applicant must at least put forward serious indications
to suggest that an investigation was motivated, needlessly continued or
conducted with a whiff of racism. I saw nothing of the sort in the evidence
submitted. At any rate, the applicant’s burden was to convince this Court that
the Commission had improperly exercised the broad discretion granted to it,
that it had not acted reasonably. The alleged errors of fact, if there should
turn out to be any, which has not been established, do not make the Commission’s
finding unreasonable in any way. They are at best peripheral incidents that in
no way undermine the basis of the case, i.e. the reason for holding an
investigation or the way it was conducted.
[64]
Predicting the outcome of a police investigation
in its early stages is seldom possible. Those who hazard a guess may
unfortunately be guilty of tunnel vision.
[65]
It goes without saying that being the target of
a police investigation is troubling. We can hope that matters are handled
fairly, discreetly and expeditiously in order to quickly clear away the clouds
if need be. In this case, the Commission was satisfied with the reviews
conducted by the two bodies charged with reviewing these types of
investigations. The Commission benefited from the applicant’s submissions twice
instead of once. There is no doubt that the applicant made his views known. The
Commission stated that it had studied both the investigator’s report and the
submissions made. That it did not agree with the applicant’s submissions was
its prerogative if this decision had the hallmarks of reasonableness in the
context of a decision which required broad deference. In this case, there was
justification, transparency and intelligibility. It was not demonstrated that
the Commission had improperly exercised its discretion. This exercise was
evidently reasonable.
B.
Discrimination in the “chain of command”
[66]
The second allegation that the Commission failed
to exercise discretion in deciding that it was not required to deal with the
complaint made by the applicant is related to racism and racial profiling
supposedly committed by the “chain of command.”
[67]
This allegation is particularly tenuous in the
docket as submitted. The judicial review involves a decision made by the
Commission not to rule on a complaint. The other allegations that were made, which,
so to speak, multiplied over time, as well as the proceedings in court, are not
part of the complaint as received by the Commission. The review is limited to
the complaint received, as it should be.
[68]
Now, this complaint is very limited. The summary
of the complaint provided at the beginning of the Report on Sections 40/41
is faithful to the wording of the complaint. The complaint revolves around the
actions of the deputy commanding officer of the platoon to which the applicant
was assigned. The complaint essentially involves the facts that led to his
involuntary release from the Forces. In it, the applicant relates interactions
with Sergeant Ouellet between June 22 and 28, 2007. But the complaint does
not contain a direct allegation based on a prohibited ground of discrimination;
at most, the applicant alleges that false statements were made regarding his
performance during training. Because it is the only allegation in the
complaint, we need to determine whether it was dealt with elsewhere, making it
reasonable for the Commission not to rule on the complaint.
[69]
The Canadian Human Rights Commission’s role is
not to render a decision, but rather, to determine where there is a rationale
for holding an investigation. As Mr. Justice La Forest said on
behalf of the majority in Cooper v. Canada (Canadian Human Rights
Commission), [1996] 3 S.C.R. 854 [Cooper]: “The central component of the Commission’s role, then, is
that of assessing the sufficiency of the evidence before it”
(paragraph 53). Can we move on to the next step with the evidence
provided?
[70]
The applicant’s burden was to satisfy the Court
that the Commission did not act reasonably in rendering its decision, for which
it is entitled to deference and which involves determining whether there is
sufficient evidence to send the case before the Human Rights Tribunal. Here,
the Commission found that the evidence of the difference between the decision
regarding the grievance and the allegation in the complaint did not provide the
Commission with a basis for ruling because it was trivial, frivolous, vexatious
or made in bad faith. The Commission did not have to be right. Thus, if the
decision is within a range of possible acceptable outcomes which are defensible
in respect of the facts and law, it is not appropriate for the reviewing Court
to intervene. The decision thus justified, transparent and intelligible is
legitimate in that the Court, even if it could have had a different opinion,
must not substitute itself for the Commission.
[71]
The Court searched the applicant’s memorandum of
fact and law and his counsel’s argument, but could not find how he would have
demonstrated that the Commission’s decision to allow the case to go to the
tribunal was unreasonable. The Commission’s role is to verify whether the
evidence suffices. The Court’s role is to ensure that the decision is not
unreasonable in light of the facts submitted by an applicant. A party that does
not discharge its burden will not have its case resolved in its favour.
[72]
I examined the case and read, and reread, the
applicant’s arguments both in his memorandum of fact and law and the summary of
the memorandum he provided for the hearing before this Court. With respect to
the complaints of discrimination, the complaint itself does not deal with this
matter explicitly and the submissions did not add anything concrete to this
complaint. The applicant focused on his claim that all the human rights issues
had not been examined by the military justice proceedings, but these
allegations go beyond the scope of his complaint and seek to introduce other
allegations that were not before the Commission.
[73]
The applicant admitted that his complaint was
limited by attempting to use every means to introduce other allegations into
his case. These other allegations were the ones he was interested in. However,
some of his allegations could have been made in his June 4, 2008
complaint; the evidence indicates the Commission staff had made this suggestion
(memo dated June 16, 2008).
[74]
The applicant’s counsel valiantly attempted to
make this memo say what it did not say. The Court could not find any indication
in the memo that the Commission had asked the applicant to make new allegations
later; on the contrary, the memo indicates that he could have used the
remaining space in the complaint form and that the docket will contain a note
explaining [translation] “why the additional information provided by the complainant will
not be attached to the complaint.” (My emphasis.)
[75]
The applicant wanted to argue that the
submissions on the Report on Sections 40/41 provided an opportunity to
make new allegations because, he said, his complaint was very incomplete.
However, all these new allegations are inadmissible because they go beyond the
complaint before the Commission.
[76]
The decision report pursuant to
Sections 40/41 notes that the Commission examined the submissions made
December 6 and 31, 2011, by the applicant. He wanted to have his new
allegations taken into consideration by the Commission investigator. However,
insofar as these new allegations are out of order because they go beyond the
scope of the complaint under study, we do not see how even the submissions
could have been of any use.
[77]
The Commission therefore concluded that the
various issues relating to the complaint as submitted had been addressed. The
memorandum of fact and law, the plan of argument, of which there is only a
14-page summary in the memorandum of fact and law, and the oral argument never
demonstrate the unreasonable character of the decision, given the Commission’s
screening role. The applicant, and no one else, was responsible for making this
demonstration rather than focusing on other allegations that were not before
the Commission. I nevertheless examined the set of facts relating to the
complaint and the Commission’s decision regarding the aspect of the case
relating to the release.
[78]
The applicant failed some Initial Assessment
Periods starting on January 14, 2007; he started over on April 13,
2007. On June 22, 2007, he was summoned to deal with behavioural problems.
He was released on June 28, 2007, on the grounds that he was unable to
adapt to military life. The applicant says he complained during training, but
the evidence seems to show that his complaints, if there were any, were not
made in writing. If they were made in writing, the applicant did not produce
them although he is prolific in producing documents and meticulous in preparing
cases. In fact, after June 28 he submitted multiple complaints and
grievances. He even submitted 11 grievances on February 25, 2011,
several years after he had left the Forces. The applicant brought an action in
this Court in the summer of 2008 regarding allegations of discrimination.
[79]
The Commission found that this episode of the
applicant’s release, involving various types of complaints, was resolved by the
Chief of Staff’s March 2, 2011 ruling.
[80]
The allegation in the complaint regarding the
applicant’s release made reference to statements by the deputy commanding
officer of the platoon, which were apparently false. The Chief of Staff’s
decision on the grievance noted a number of actions by the applicant that
justified some remedial measures ordered for the applicant. They were said to
be in connection with the Progress Review Board where the applicant apparently
received unfavourable scores for practical exams and physical aptitudes, as
well as for his attitude. The Chief of Staff found that the Progress Review
Board had been convened prematurely and that the entire matter had to be
remedied by granting the applicant a voluntary release and an IAP (Initial
Assessment Period) qualification. Thus the applicant’s release from the Forces
is “On Request – Other Causes.”
[81]
Essentially, the Commission found that the
allegations made in the complaint regarding unfavourable treatment during
employment were addressed by the Chief of Staff. The July 30, 2007
grievance was partially granted in that the remedies requested regarding the
involuntary release were ordered. The Chief of Staff was satisfied that the
Progress Review Board, which found that the applicant should be released, had
acted prematurely. As a result, some remedies were provided (the release
category was changed to a favourable release category). Because the applicant
did not request to be readmitted, the Commission does not see how this matter could
be more appropriately examined by the Commission. The June 4, 2008
complaint noted that the applicant’s reputation was damaged by his involuntary
release. This issue was remedied by the Chief of Staff. The applicant had to
demonstrate that the Commission had committed an unreasonable error and that
there was sufficient evidence, making it unreasonable to find that further
useful measures could not be taken at this point. However, the applicant
limited himself to claiming that other issues had been raised and not resolved,
thereby failing to make the necessary demonstration in a judicial review of a
decision under paragraph 41(1)(d) of the Act.
[82]
As the respondent has argued, this Court is not
conducting a judicial review of the Chief of Staff’s decision on the grievance.
Moreover, this decision very clearly states that the Chief of Staff is the
final authority under the National Defence Act and that the decision is
therefore “final and binding, except for judicial
review under the Federal Courts Act.” As a result, if the
applicant was not satisfied with the Chief of Staff’s decision, he had to
challenge it before this Court. The Commission, in conducting a proceeding
before it, was not allowed to review the Chief of Staff’s decision, a type of
collateral challenge.
[83]
The Report on Sections 40/41 that is before
this Court is far from a model of clarity and articulation. Although we should
expect better, that is not a sufficient reason to quash a decision, insofar as
this decision is entitled to broad deference (Newfoundland and Labrador
Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
at paragraph 14, [2011] 3 SCR 708). The reasons must “allow the reviewing court to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes” (paragraph 16).
[84]
It is true that the applicant did not see the
various allegations that he would have wanted resolved by the Commission.
However, it is because they were not before the Commission that they were not
addressed. The only matter before the Commission was the complaint which, other
than the episode of the military police investigation, related the
circumstances of the applicant’s release from the Forces, between June 22
and 28, 2007, when the recommendation that the applicant be released was
supported by the Canadian Forces Leadership and Recruit School. That is what
the complaint involved.
[85]
So there is a relationship between the
complaint, which deals with the applicant’s release, the grievance decision
that grants a remedy regarding the release classification (making it voluntary,
the applicant having indicated that he no longer wanted to re-enrol) and the
Commission’s decision, which must deal only with this release from the Forces.
The Chief of Staff examined the applicant’s involuntary release, which was the
subject of the applicant’s complaint, and found that a remedy was appropriate.
Not only was this aspect of the complaint addressed, the applicant received
redress. The applicant’s burden was not discharged. Instead of relentlessly
arguing that other human rights issues had not been addressed, he should have
examined the real issue, the reasonableness of the decision that the matters raised
by the complaint had been addressed in the military proceedings.
[86]
As indicated above, a party applying for
judicial review of a decision under paragraph 41(1)(d) of the Act has to
discharge a heavy burden, given the deference due to the decision-maker. Here,
the applicant should have requested a judicial review of the Chief of Staff’s
decision. He did not. Whereas the Report on Sections 40/41 clearly stated
that the Commission considered the complaint redundant, the proposed
submissions to the Commission were designed either to challenge the Chief of
Staff’s decision as though we were conducting a judicial review of the decision
on the grievance, or they sought to broaden the debate beyond the allegations
in the complaint.
[87]
With respect, the applicant did not demonstrate
why the Court should not grant the deference due to the Commission in this
matter. Claiming that the Commission should have dealt with the complaint (in
English, “shall deal with any complaint,” in
subsection 41(1) of the Act) to go beyond the scope of the complaint is an
inherent contradiction. The Commission cannot rule on the complaint as
submitted. I see nothing unreasonable in considering only the four corners of
the complaint. Rather, the applicant should satisfy the Court that the
Commission’s finding that there are no further issues to be examined within
the scope of the complaint submitted was unreasonable. However, the
applicant’s proof focused on the other allegations that the applicant wanted to
make. This proof was not relevant within the framework of these proceedings. As
a result, the applicant did not discharge his burden.
VIII.
Procedural fairness
[88]
The applicant raised the issue of a breach of
procedural fairness both in his application for judicial review and his amended
memorandum of fact and law. However, no mention was made of this issue at the
hearing and the plan of argument simply referred to the memorandum.
[89]
In the plan of argument, the applicant uses the
term [translation] “principle of procedural fairness” in reference to
issues which he does not present as breaches of this principle. The plan of
argument discusses patently unreasonable errors, particularly regarding the
Commission’s refusal to consider the February 2008 document (first
complaint), which did not satisfy the conditions issued by the Commission and
the letter dated June 4, 2008, that was added to the three pages already
granted to submit a complaint to the Commission.
[90]
Finally, examination of the application for
judicial review, the plan of argument and the respondent’s amended memorandum
of fact and law revealed that the only issue of procedural fairness involved
the limit placed on submitting complaints and submissions.
[91]
In fact, the first procedural fairness issue
raised was that the summary of the complaint made by the investigator was not
complete. The applicant does not indicate how the summary could breach the
principle of procedural fairness. Comments were provided on this summary and
the remainder of the Report on Sections 40/41 and the applicant was heard.
There was no breach of the principle of the right to be heard (audi alteram
partem). I would add that I have read the complaint and that the summary
provided is more than adequate. There is reason to suspect that the applicant
is now complaining about the summary because it does not contain any of the
other allegations made beyond the formal complaint. If this is in fact the
case, it is a baseless criticism.
[92]
Nor can the allegations that the applicant would
have wanted to make ex post facto be introduced based on an error of
law. This error would be that the complaint form can be modified to make a
simple correction or a minor clarification (memorandum of fact and law,
paragraph 67). It had nothing to do with this type of correction or minor
correction.
[93]
Finally, any tentative arguments must take into
account the limitation set out in the Act (paragraph 41(1)(e)). The
complaint must be submitted within one year of the last acts or omissions upon
which it is based, notwithstanding such longer period of time that may be
granted by the Commission. Later allegations can be limited, and those made
after June 2008, and obviously those in December 2011, largely exceed
the limitation period set out in the Act. Moreover, particular circumstances
may have to be considered and I refrain from deciding.
[94]
Nor is there any authority that supports the
applicant’s contention that limiting the documents to a prescribed number of
pages constitutes a breach of procedural fairness.
[95]
That may be because the jurisprudence of this
Court confirms that it is appropriate for the Commission to limit the number of
pages for making a complaint or submissions. In Zulkoskey v. Canada
(Employment and Social Development), 2015 FC 1196, my colleague
Mr. Justice Manson wrote:
42 In summary, when the Baker
factors are considered as a whole, the procedural fairness to be afforded in
the circumstances of applying paragraph 41(1)(d) is on the lower end of
the spectrum.
. . .
45 The Commission carried out its
statutory mandate and has complied with its duty of fairness. The Report was neutral
and sufficiently thorough. The Applicant had ample opportunity to make
submissions and convey her disagreement with the information in the Report. She
was provided an opportunity to present her case, and the 10 page limit was
not procedurally unfair (Boshra v. Canada (Attorney General), 2011 FC 1128,
at paras 50–52). The Report, upon which the Commission’s Decision is
based, identified the issues, comprehensively canvassed the parties’ positions,
the factors to be applied in determining if a claim is vexatious, and
subsequent information gathered from the parties.
[96]
The same finding was stated in Jean Pierre v.
Canada (Citizenship and Immigration), 2015 FC 1423, where Mr. Justice Gascon
stated the following:
42 With respect to the submissions
that followed the investigator’s report, the instructions showed that Mr. Jean Pierre
could include exhibits with his submissions, subject to the ten-page limit
imposed by the Commission at this stage. This Court has confirmed that the
Commission’s procedure of putting a cap on the length of submissions at this
stage of the complaint process is reasonable (Donohue v Canada (National
Defence), 2010 FC 404 [Donohue] at para 28; Boshra
at para 50–52). Such instructions do not raise the issue of procedural
fairness.
[97]
We can understand why limits must be set on
documents submitted before proceedings, including those before this Court
(rule 70 of the Federal Courts Rules), other courts or before the
Commission. It is not particularly difficult to fall into prolixity, and this
case is an example. This is not unlike the decision in Donohue v. Canada
(National Defence), 2010 FC 404:
28 I am satisfied that the applicant
was given a fair and meaningful opportunity to take part and make submissions
to the Commission. He seemed frustrated that he could not submit the entire
contents of his files with the Privacy Commission and Military Police Complaint
Commission. The Commission’s internal policy of putting a cap on the length of
submissions at this preliminary stage seems rational and did not prevent the
applicant from summarizing the key contents of those Commissions’ findings. In
any event, there is no genuine issue of procedural fairness here.
[98]
Here, the applicant had two opportunities to
make a 10-page submission each time. The problem was not that the number of
pages was insufficient. The problem was that the submissions discussed topics
unrelated to the complaint before the Commission or got lost in the details.
With respect to the complaint itself, the applicant used only two and a half of
the three pages to which he was entitled. The proof is that when he attempted
to add a letter to his allegations, he was notified by the Commission staff
that he had the option to add it at the bottom of the third page of the
complaint because there was some unused space available. Given the contents of
the June 4 letter, it would have been easy to do. The note in the docket dated
June 16, 2008 is clear: [translation]
“The complainant has chosen not to modify his complaint
and it was agreed that a note would be placed in the docket to explain why the
additional information provided by the complainant would not be attached to the
complaint.” The contemporaneous note is clear.
[99]
As a result, there is no breach of the principle
of procedural fairness.
IX.
Conclusion
[100] The Commission’s decision that the Armed Forces’ internal review
procedures had dealt with the allegations made in the June 4, 2008
complaint and that there were no [translation]
“outstanding issues that could be more appropriately
examined by the Commission” was not demonstrated to be unreasonable. The
procedure followed by the Commission limiting the number of pages to be used
does not violate procedural fairness.
[101] The application for judicial review must therefore be dismissed,
with costs to the respondent. The parties were unable to agree on the amount of
the costs, but they nevertheless refused to follow the guidelines set out in
rule 407 of the Federal Courts Rules, (SOR/98-106). The applicant
claimed a $3,500 lump sum. The respondent set his fees and disbursements at
$7,519.50. Clearly, the respondent would like the Court to take into account
the applicant’s behaviour, which needlessly prolonged the proceedings. In my
opinion, given the circumstances of this matter, $3,500 in costs would be
appropriate in this case.
Email this Content