Docket: T-669-16
Citation:
2016 FC 1288
Toronto, Ontario, November 22, 2016
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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NICHOLAS
MANOUSOS
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Applicant
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and
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FEDERAL EXPRESS
CANADA LTD.
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Respondent
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JUDGMENT AND REASONS
[1]
The present Application concerns the Applicant’s
late-filed complaint to the Canadian Human Rights Commission (Commission) in which
he alleged that, in the course of his employment as a courier, the Respondent discriminated
against him on the ground of disability by treating him in an adverse
differential manner and by terminating his employment contrary to s. 7 of the Canadian
Human Rights Act, R.S.C., 1985, c. H-6 (Act).
[2]
The basis of the Applicant’s complaint is that
he has been diagnosed with a chronic disease being Crohns and Ulcerative
colitis resulting in irritable bowel syndrome and, for which, the Respondent
failed to provide accommodation.
[3]
The Applicant’s employment was terminated on
November 21, 2013. As a result, he was required to file his complaint with the Commission
within one year of that date. However, instead of so applying, in error the
Applicant applied to the Human Rights Tribunal of Ontario. The error was not
corrected until January 22, 2015 when the Applicant late-filed with the Commission.
[4]
Pursuant to s. 41(1)(e) of the Act, the Commission
has statutory authority to grant relief with respect to late-filed complaints
if to do so is considered to be “appropriate”:
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41 (1) Subject to section 40, the Commission shall deal with any
complaint filed with it unless in respect of that complaint it appears to the
Commission that
[…]
(e) the complaint is based on acts or omissions the last of which
occurred more than one year, or such longer period of time as the Commission
considers appropriate in the circumstances, before receipt of the complaint.
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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 :
[...]
e) la plainte a été déposée après l’expiration d’un délai d’un an
après le dernier des faits sur lesquels elle est fondée, ou de tout délai
supérieur que la Commission estime indiqué dans les circonstances.
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[5]
In the present case an investigation Report dated
December 23, 2015 was prepared for the Commission’s consideration in which the
circumstances were detailed. In the Report at paragraph 19, a key opinion with
respect to the substance of the Applicant’s complaint was expressed:
The complaint raises allegations of failure
to accommodate the complainant's disability and termination of his employment. The
complainant admits in his complaint form that he falsified a document by
bypassing the signature panel and typing in the receiver's name. The respondent
says this was the third time he had falsified documents. This complaint is a
private dispute between the parties and does not raise any allegations of
systemic discrimination.
[Emphasis added]
[6]
The conclusion reached in the Report at
paragraph 24 was recommended to the Commission:
Conclusion
The present complaint was filed on January
22, 2015, fourteen months after the complainant's termination on November 21,
2013. The question for the Commission is whether it should exercise its
discretion to deal with the complaint, even though it was filed two months
after the statutory time limit set out in the Act. The complainant explains
that the reason for the delay is that he did not know until December 28, 2014,
that the Commission existed. Ignorance of the law or of the Commission's
existence is not an excuse or a reason for the Commission to exercise its
discretion to deal with a complaint that has been filed out of time.
Furthermore, the respondent’s employee handbook mentions the Canadian Human
Rights Act in its Workplace Violence and Harassment Policy, which states that
FedEx condemns any acts of violence, harassment and/or discrimination in its
work environments. The complainant could have informed himself of his rights if
he had consulted his employee handbook. It appears that the complainant did not
do everything he could and should have done to file his complaint in time. The
complainant has not provided a reasonable explanation for the delay in filing,
and therefore the Commission should not deal with the complaint.
[Emphasis added]
[7]
The Commission accepted the recommendation and decided
not to deal with the Applicant’s complaint. This result was communicated to the
Applicant on March 30, 2016.
[8]
With respect to the level of deference that
should be paid to the Commission’s screening decisions, two precedents are
important to consider.
[9]
The Federal Court of Appeal made this point in Bell
Canada v. Communications, Energy and Paperworkers Union of Canada [1999] 1
F.C. 113 at paragraph 38:
The Act grants the Commission a
remarkable degree of latitude when it is performing its screening function on
receipt of an investigation report. Subsections 40(2)
and 40(4) and sections 41 and 44 are replete with expressions such as "is
satisfied", "ought to", "reasonably available",
"could more appropriately be dealt with", "all the
circumstances", "considers appropriate in the circumstances"
which leave no doubt as to the intent of Parliament. The grounds set out for
referral to another authority (subsection 44(2)), for referral to the President
of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright
dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact,
law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1
F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a
general rule that Parliament did not want the courts at this stage to intervene
lightly in the decisions of the Commission.
[Emphasis added]
[10]
In Zavery v Canada (Human Resources
Development) 2004 FC 929 at paragraph 27, the Federal Court had this to
say:
The determination of timeliness is a
discretionary decision of the Commission that attracts the highest degree of
deference. If the decision of the Commission to
reject all of the allegations due to the lack of timeliness was not patently
unreasonable or otherwise reviewable, the error of jurisdiction becomes
irrelevant. The Commission is obliged, when determining whether a complaint
filed beyond the one-year limit should be dealt with, to put its mind to
whether the circumstances would warrant a longer filing period (s.41(1)(e)).
[Emphasis added]
[11]
I find that the Commission certainly did put its
mind to the circumstances of the Applicant’s complaint, and provided a clear
reasonable decision. As a result, the present Applicant must be dismissed.
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