Date: 20111128
Dockets: A-411-10
A-412-10
Citation: 2011 FCA 332
CORAM: BLAIS
C.J.
PELLETIER
J.A.
DAWSON J.A.
A-411-10
BETWEEN:
CANADIAN HUMAN RIGHTS
COMMISSION
Appellant
and
CANADIAN
TRANSPORTATION AGENCY
and AIR CANADA
Respondents
A-412-10
BETWEEN:
CANADIAN HUMAN RIGHTS
COMMISSION
Appellant
and
AIR CANADA
Respondent
REASONS FOR
JUDGMENT
DAWSON J.A.
[1]
Mr.
Eddy Morten is profoundly deaf and blind in his left eye. He has very limited
vision in his right eye. On August 12, 2004, he booked a flight on Air Canada. Shortly thereafter, he
learned that Air Canada would not permit him to fly without an attendant.
[2]
On
February 1, 2005, Mr. Morten filed a complaint with the Canadian Transportation
Agency (Agency) claiming that Air Canada’s attendant policy was an undue
obstacle to his mobility. On July 8, 2005, the Agency rendered a decision in
respect of Mr. Morten’s complaint. The Agency agreed that Mr. Morten had
encountered an obstacle to his mobility, but concluded that it was not undue. The Agency accepted Air Canada’s assessment that Mr.
Morten was required to travel with an attendant due to safety-related concerns
in the event of an emergency evacuation or decompression.
[3]
The Canada
Transportation Act, S.C. 1996, c. 10 (Act) provides the following avenues
of redress from decisions of the Agency:
a.
The
Agency may review, rescind or vary any decision or order if, in its view, there
has been a change in the facts or circumstances (section 32).
b.
The
Governor in Council may, either on the petition of a party or an interested
person or on its own motion, vary or rescind any decision, order, rule or
regulation of the Agency (Section 40).
c.
This
Court may hear an appeal of a decision of the Agency on a question of law or
jurisdiction, where this Court grants leave to appeal (subsection 41(1)).
[4]
Mr.
Morten did not pursue any redress from the Agency’s decision. Instead, on
September 19, 2005, Mr. Morten made a complaint to the Canadian Human Rights Commission
(CHRC or Commission) on the same facts that formed the basis of his complaint
to the Agency. After a 16-month investigation, the CHRC referred the matter
to the Canadian Human Rights Tribunal (Tribunal).
[5]
Air Canada then brought a motion in
which it asked the Tribunal to stay its proceeding because the Agency had
already adjudicated the same complaint. Air Canada based its motion upon the principles of issue
estoppel, abuse of process and collateral attack. At the same time, Air
Canada advised Mr. Morten that it would support an application for leave
to appeal the Agency’s decision to this Court (including a request for an
extension of time for the bringing of the application for leave) if either Mr.
Morten or the CHRC was of the view that the Agency had failed to properly
exercise its mandate when it considered Mr. Morten’s complaint.
[6]
The
Tribunal denied Air Canada’s motion for a stay. In
the Tribunal’s view issue estoppel did not apply because the parties
were not the same; the CHRC was not a party to the proceedings before the
Agency. In addition, it would not be an abuse of process for the Tribunal to
hear the matter because the CHRC was not a party before the Agency and, in the
view of the Tribunal, “the Agency’s analysis in dealing with Mr. Morten’s
claim falls far short of what would be required under [the test established in Council
of Canadians with Disabilities v. VIA Rail Canada Inc.].” In the Tribunal’s
view it would be “an injustice to deprive both Mr. Morten and the CHRC of the
opportunity to put Air Canada to the strict proof of
its contention that accommodating his needs or others with similar needs, would
cause it undue hardship within the meaning of these terms.” Finally, the
Tribunal found there was no collateral attack because Mr. Morten did not
contest before the Tribunal the legality of the Agency’s decision.
[7]
The
Tribunal later went on to conclude that Air Canada had not established a bona
fide justification for its attendant policy because it did not prove it had
“incorporate[d] every possible accommodation to the point of undue hardship” in
its tariff.
[8]
The
Tribunal ordered two remedies. First, because Mr. Morten had been denied the opportunity
to have his individual level of self-reliance assessed fairly and accurately,
the Tribunal ordered Air Canada to “work with the CHRC
and Mr. Morten to develop an attendant policy that takes into account the
communication strategies utilized by people like Mr. Morten”. To comply with
the order Air Canada would be required to amend
the tariff which sets out its policy concerning the transportation of travelers
with disabilities. Second, the Tribunal awarded Mr. Morten $10,000.00 in
damages on the ground that Air Canada’s discriminatory treatment impacted his
sense of accomplishment, his efforts to develop his independence over the years
and his physical well-being.
[9]
The
Agency and Air Canada both applied to the
Federal Court for judicial review of the Tribunal’s decision on the basis that
it acted beyond its jurisdiction and contrary to law in all but its award of a
monetary remedy. The two applications for judicial review were heard together
by the Federal Court.
[10]
On
October 13, 2010, a judge of the Federal Court decided that the Tribunal acted
beyond its jurisdiction when it heard a complaint already decided by the Agency:
2010 FC 1008, 375 F.T.R. 62. He set aside the whole of the Tribunal’s decision,
except for the award of $10,000.00 for pain and suffering (which Air Canada did
not contest in the application for judicial review).
[11]
The
CHRC filed two appeals from the decision of the Federal Court rendered in the
two applications for judicial review. In its appeals the CHRC submits that the
Judge erred in law by concluding that the Agency has exclusive jurisdiction to
deal with human rights complaints that relate to a federal transportation
carrier’s policies, tariffs or transportation regulations.
[12]
Air Canada filed a cross-appeal
from the Judge’s determination that the standard of review for the merits of
the Tribunal’s decision is reasonableness. Air Canada argues that the Tribunal lacks the
expertise in the “highly specialized area of aviation law” required to receive
deference.
[13]
The
appeals and the cross-appeal were consolidated in this Court by order dated
January 7, 2011. The original of these reasons will be filed in A-411-10,
the lead file, and a copy of these reasons shall be placed in court file
A-412-10. A judgment will also be entered in each file.
[14]
For
the reasons that follow, I would dismiss the appeals and the cross-appeal, and
I would award one set of costs to Air Canada in respect of both appeals, to be paid by the
Commission.
1. The Appeals
Issues on Appeal
[15]
The
Judge viewed the applications for judicial review to raise a true question
concerning the jurisdiction of the Tribunal. It followed, in his view, that the
Tribunal’s decision should be reviewed on the standard of correctness.
[16]
For
the purpose of this appeal, the Commission accepts this standard of review. The
Commission thus frames the issues to be decided on the appeal to be:
1.
Did
the Judge err in finding that the Tribunal lacked jurisdiction to hear Mr. Morten’s
complaint?
2.
If
the Tribunal had jurisdiction, did it act improperly by exercising its
discretion in the specific circumstances of Mr. Morten’s complaint?
[17]
In
my view, as explained below, the issues raised on the appeal are:
1.
What
was the nature of the question before the Tribunal?
2.
Did
the Judge select the correct standard of review?
3.
Is
intervention by this Court warranted on the basis of the proper application of
the correct standard of review?
Consideration of the
Issues
i. The nature of the
question before the Tribunal
[18]
In
my view, the question before the Tribunal was not one of jurisdiction. Mr.
Morten’s complaint to the Agency was brought under Part V of the Act, entitled
“Transportation of Persons with Disabilities.” Since the decision of the
Supreme Court of Canada in Council of Canadians with Disabilities v. VIA
Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, it is clear that Part V
of the Act is in the nature of human rights legislation and the Agency must
interpret the Act according to human rights principles (VIA Rail at
paragraphs 112 to 117). There is no doubt that the Agency had jurisdiction to
hear and adjudicate upon Mr. Morten’s complaint.
[19]
When
Mr. Morten later attempted to re-litigate his complaint before the Tribunal,
Air Canada argued that
the Tribunal should decline to exercise its jurisdiction to deal with Mr.
Morten’s complaint by operation of the doctrines of issue estoppel,
abuse of process and collateral attack. By raising these issues Air Canada did not put
in issue the jurisdiction of the Tribunal to adjudicate Mr. Morten’s
complaint of discrimination. Rather, Air Canada argued that
the Tribunal should exercise its discretion to stay the proceeding.
[20]
For
the purpose of this appeal it is sufficient to assume, without deciding, that
the Tribunal did have concurrent jurisdiction with the Agency to deal with a
complaint concerning discrimination within the federal transportation network.
Properly understood, the question before the Tribunal therefore was whether it
should exercise its discretion not to hear Mr. Morten’s complaint on the ground
that the same complaint had previously been adjudicated by the Agency. This was
not a true question of jurisdiction, but rather a question of the Tribunal’s
exercise of discretion.
ii. Did the Judge
select the correct standard of review?
[21]
Having
determined that the question before the Tribunal concerned the exercise of its
discretion to stay Mr. Morten’s complaint, I am satisfied that the applicable
standard of review of the Tribunal’s decision on this point is reasonableness.
See: Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraphs 51 and 53; and Smith v. Alliance Pipeline
Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160 at paragraph 26. The Judge erred
in law in applying the correctness standard of review.
iii. Was the Tribunal’s
decision not to stay the proceedings reasonable?
[22]
While
this decision was under reserve, the Supreme Court of Canada rendered its
judgment in British Columbia (Workers’ Compensation Board) v. Figliola,
2011 SCC 52. The parties were, accordingly, afforded the opportunity to
make brief written submissions to this Court with respect to the application of
the Figliola decision.
[23]
At
issue in Figliola was what factors ought to guide a tribunal which
shares jurisdiction over human rights when deciding whether to dismiss all or
part of a complaint on the ground that the complaint has already been decided
by the other tribunal with concurrent jurisdiction. Of relevance was paragraph
27(1)(f) of the British Columbia Human Rights Code, R.S.B.C.
1996, c. 210, which allowed the British Columbia Human Rights Tribunal to
dismiss all or part of a complaint if it determined that “the substance of the
complaint or that part of the complaint has been appropriately dealt with in
another proceeding.”
[24]
Paragraph
27(1)(f) of the British Columbia Human Rights Code obviously has
no application to this proceeding. However, the majority of the Supreme Court
found that this provision reflects the common law doctrines of issue
estoppel, abuse of process and collateral attack. The comments of the
Supreme Court are, therefore, apposite in this case to the application of these
common law principles by the Tribunal.
[25]
At
paragraph 34, the majority of the Supreme Court summarized the common
principles which underlie the doctrines of issue estoppel, abuse of
process and collateral attack:
• It
is in the interests of the public and the parties that the finality of a
decision can be relied on (Danyluk, at para. 18; Boucher, at
para. 35).
• Respect
for the finality of a judicial or administrative decision increases fairness
and the integrity of the courts, administrative tribunals and the
administration of justice; on the other hand, relitigation of issues that have
been previously decided in an appropriate forum may undermine confidence in
this fairness and integrity by creating inconsistent results and unnecessarily
duplicative proceedings (Toronto (City), at paras. 38 and 51).
• The
method of challenging the validity or correctness of a judicial or
administrative decision should be through the appeal or judicial review
mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk,
at para. 74).
• Parties
should not circumvent the appropriate review mechanism by using other forums to
challenge a judicial or administrative decision (TeleZone, at para. 61; Boucher,
at para. 35; Garland, at para. 72).
• Avoiding
unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at
paras. 37 and 51).
[26]
At
paragraphs 36 and 37, the majority went on to explain how these principles
should be applied by a tribunal when considering a request that it not hear a
proceeding because the subject matter of the proceeding has previously been the
subject of adjudication by another tribunal:
36. Read
as a whole, s. 27(1)(f) does not codify the actual doctrines or their
technical explications, it embraces their underlying principles in pursuit of
finality, fairness, and the integrity of the justice system by preventing
unnecessary inconsistency, multiplicity and delay. That means the Tribunal
should be guided less by precise doctrinal catechisms and more by the goals of
the fairness of finality in decision-making and the avoidance of the
relitigation of issues already decided by a decision-maker with the authority
to resolve them. Justice is enhanced by protecting the expectation that parties
will not be subjected to the relitigation in a different forum of matters they
thought had been conclusively resolved. Forum shopping for a different and
better result can be dressed up in many attractive adjectives, but fairness is
not among them.
37. Relying
on these underlying principles leads to the Tribunal asking itself whether
there was concurrent jurisdiction to decide human rights issues; whether the
previously decided legal issue was essentially the same as what is being
complained of to the Tribunal; and whether there was an opportunity for the complainants
or their privies to know the case to be met and have the chance to meet it,
regardless of how closely the previous process procedurally mirrored the one
the Tribunal prefers or uses itself. All of these questions go to determining
whether the substance of a complaint has been “appropriately dealt with”. At
the end of the day, it is really a question of whether it makes sense to expend
public and private resources on the relitigation of what is essentially the
same dispute.
[emphasis
added]
[27]
At
paragraph 38, the majority warned that a tribunal sharing concurrent
jurisdiction is not “to ‘judicially review’ another tribunal’s decision, or to
reconsider a legitimately decided issue in order to explore whether it might
yield a different outcome.”
[28]
Turning
to the application of these principles to the Tribunal’s decision, as in Figliola
it may be said that the Tribunal was “complicit” in an attempt to collaterally
appeal the merits of the Agency’s decision and decision-making process. The
Tribunal dismissed Air Canada’s motion for a stay on technical grounds,
without considering the unfairness inherent in serial forum shopping. The
Tribunal failed to consider whether Mr. Morten should be allowed to ignore the
review mechanisms provided in the Act and to instead use the Tribunal to
relitigate essentially the same legal issue in an effort to obtain a more
favourable result. It did not engage in the required analysis. Specifically, the
Tribunal failed to consider that, before the Agency, Mr. Morten knew the case
to be met and was afforded the opportunity to meet that case. Any concern on
the part of Mr. Morten about the Agency’s application of human rights
principles ought to have been addressed through the redress provided under the
Act for decisions of the Agency - particularly when Air Canada had offered
to support an application for leave to appeal the Agency’s decision.
[29]
For
these reasons, the Tribunal’s decision to proceed with Mr. Morten’s complaint was
unreasonable and should be set aside.
[30]
The
Federal Court did set aside the Tribunal’s decision (except for the monetary
award). It follows that I would dismiss these appeals. I would also order the
Commission to pay one set of costs to Air Canada in respect
of both appeals.
Procedural matter
[31]
During
oral argument, counsel for the Agency was asked by the Court by what authority
it had standing to seek judicial review the decision of another federal agency.
No satisfactory response was given. While subsection 41(4) of the Act
authorizes the Agency to be heard on the argument of an appeal from one of its
own decisions, the Act confers no special status on the Agency to challenge
decisions made by other tribunals.
[32]
If
in future, in similar circumstances, one agency purports to challenge the
decision of another agency, the issue of the moving party’s standing should be
raised and addressed in the Federal Court.
[33]
The
Agency did not seek costs. In circumstances where its standing to challenge the
decision of the Tribunal is, at best, uncertain no costs would be awarded to it
in any event.
2. The Cross-appeal
[34]
As
the decision of the Tribunal was set aside by the Federal Court, and as I would
dismiss the appeals from that decision, for the reasons set out above, it is
not necessary to consider whether the Federal Court erred in concluding that
the Tribunal’s findings on the merits of Mr. Morten’s complaint were reviewable
on the standard of reasonableness. I would therefore dismiss the cross-appeal
without costs.
“Eleanor R. Dawson”
“I agree.
Pierre Blais C.J.”
“I agree.
J.D. Denis Pelletier J.A.”
Email this Content