Date: 20081120
Docket: A-36-08
Citation: 2008 FCA 360
CORAM: LÉTOURNEAU
J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
CAROLYN BREDIN
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
Overview
[1]
The
appellant appeals to this Court from the order of Mr. Justice Frenette (the
Applications Judge), dated December 21, 2007 (2007 FC 1361), by which he
dismissed her application for judicial review of a decision of the Canadian
Human Rights Commission (the Commission) dated February 17, 2007.
[2]
Exercising
its duty to deal with complaints filed with it under paragraph 41(1)(e)
of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act), the
Commission decided not to deal with the appellant’s complaint, dated May 10,
2005, because (a) it was out of time, as it was based on acts that had occurred
more than one year before the filing of the complaint; and (2) the appellant’s
reasons for the delay did not appear to be sufficient justification for the
Commission to bring the complaint into time (Commission’s decision, AB, Tab 4,
p. 38).
[3]
This is
the appellant’s second challenge of the Commission’s decision. When the appellant
first sought judicial review of the impugned decision, Mr. Justice Blanchard
granted the application and referred the matter back for re-determination,
having found that the Commission’s reasons were inadequate and insufficient (Bredin
v. Canada, 2006 FC 1178 (Bredin 1)).
[4]
Having
examined the reasons of the Commission issued following Bredin 1, the
Applications Judge found that the position taken by the Commission was
reasonable and dismissed the application. Hence the within appeal, which I
propose to dismiss.
[5]
The
Appellant does not dispute that her complaint was out of time. Thus, the issue
in this case is whether the appellant met her burden of proof in providing a
satisfactory explanation for the delay, one that the Commission could consider appropriate
in the circumstances (paragraph 41(1)(e) of the Act).
The Facts
[6]
With this
in mind, the relevant facts can be summarized shortly.
[7]
The
appellant began her career in 1979 as an employee of Citizenship and
Immigration Canada (CIC, the respondent in front of the Commission). She
subsequently transferred to the Department of Justice (DOJ) effective April 30,
2001. In 1992, she was diagnosed with major depression and took a disability
leave. Between October 4, 1993 and November 29, 1995, the appellant returned
to work on a gradual basis before returning full-time. During that period, she
was listed as a part-time employee (reasons for judgment, at para. 4, 5).
[8]
In her
complaint to the Commission, the appellant alleged that CIC treated her
adversely based on disability by refusing to amend her employment status from
part-time to full-time for the period in question. As a result of the
respondent’s refusal (December 18, 2001), the appellant was unable to buy back
portions of her pension from 1993 to 1995 with ensuing significant
repercussions on her pensions entitlements. (Section 41 Analysis Report, AB,
Tab 4, p. 42, at para. 1; appellant’s memorandum of fact and law, at para.
2). The appellant claims that she was misinformed with respect to the impact
of being listed as a part-time employee.
[9]
Before
filing her complaint with the Commission, the appellant, through DOJ, pursued
an informal review process with CIC regarding that matter (Section 41 Analysis
Report, AB, Tab 4, p. 5, at para. 26).
[10]
This internal
review process culminated in a decision made by CIC on July 11, 2003 whereby
CIC informed the appellant of its decision "not to amend her employment
status for the period requested". That decision forms the basis of the
appellant’s alleged adverse differential treatment (Bredin 1, at para.
53).
The Commission’s Decision
[11]
The
Commission’s investigator found that CIC’s letter of July 11th, 2003
to the appellant "began the one-year time limitation period" to file
a complaint. (Section 41 Analysis Report, AB, Tab 4, p. 45, at para. 24).
[12]
The
Investigator wrote:
a.
…This
letter advises the complainant that the respondent denied her request (to amend
her employment status from part-time to full-time from October 4th,
1993 to November 29th, 1995). Further, this letter specifically
addresses the complainant’s allegation that the respondent’s Compensation and
Benefits Advisor misinformed her about the impact of her part-time employment
status when she returned to work in 1993. For this complaint to be in time, the
complainant would have to have contacted the Commission by July 11th,
2004. The complainant first contacted the Commission on April 5th,
2005, almost two years after receiving the respondent’s July 11th,
2003 decision. Although the effects of the alleged discrimination may be
ongoing there has been no new alleged discriminatory act since July 11, 2003.
b.
Although
the complainant has provided evidence that a psychiatrist has treated her for
Major depression from May 2003 onward, and her psychiatrist states that her
"condition affected her ability to function and to complete tasks in a
timely manner," the evidence indicates that the complainant maintained
contact with her current employer during this time (who subsequently followed
up with the respondent for her) and she pursued an informal review process with
the respondent regarding her employment status. The evidence indicates,
therefore, that the complainant could have filed a complaint with the
Commission in a timely manner, had she chosen to take that route.
c.
The
delay in the complainant’s filing of this complaint appears to have incurred in
good faith. However, the complainant’s attempt to resolve the issue informally
does not justify the delay. The Canadian Human Rights Act does not
require that complainants exhaust alternate redress before filing a complaint.
The complainant could have filed a complaint immediately after the respondent
communicated its decision to her, and the Commission, at that time, may have
exercised its discretion under section 41(1) to refer the complainant to
alternate redress.
The Federal
Court Decision
[13]
The
Applications Judge found that the Commission’s decision was not patently
unreasonable in the circumstances (reasons for judgment, at para. 68).
[14]
At
paragraphs 57 and 58, the Applications Judge wrote:
[57]
The investigator acknowledged that the applicant had been diagnosed with
severe depression in May 2003 and that she submitted that her disability
rendered her incapable of making a formal human rights complaint. However, Dr.
Vervaeke’s letter does not specifically state that the applicant’s condition
was such that she would be unable to participate in the Commission’s complaint
process.
[58]
The investigator also noted that the applicant continued to pursue the
matter of her employment status informally. She received a letter and had two
telephone conversations during this period of time. Moreover, I would note that
the applicant was diagnosed with severe depression in May 2003; she has subsequently
returned to work in June 2005. She was able to file her complaint on May 10,
2005 but she did not establish when she was well enough to be able to file her
complaint. In the meantime, she was communicating with her employee in an
informal way.
[15]
The
Applications Judge also found that:
(…) the
applicant was able to disabuse herself of any concerns raised by the second
investigation report and had an adequate opportunity to present the Commission
with evidence she believed was relevant to its decision (ibid. at para.
52).
[16]
The
judgment under appeal was issued before the Supreme Court’s decision in Dunsmuir
v. New
Brunswick
2008 SCC 9 (Dunsmuir). The parties agree that since Dunsmuir,
the standard of review of the Commission’s decision on the application of
its discretion to the facts of this case is reasonableness.
Analysis and Conclusion
[17]
I agree
with the Applications Judge that "although this Court may not have reached
a similar conclusion, the evidence is sufficient to support the Commission’s
finding and no intervention is warranted" (ibid. at para. 40). In
making this finding, the Applications Judge made no overriding and palpable
error.
[18]
It was
incumbent upon the appellant to present a full record to the Commission and to
provide adequate and sufficient reasons for it to deal with the complaint
although it was out of time.
[19]
The
Commission examined all of the evidence made available to it, as it was
directed to do following Bredin 1 (supra at para. 61) and, as the
Applications Judge found, made a reasonable determination.
[20]
Therefore,
I propose to dismiss the appeal with costs before this Court.
"Johanne
Trudel"
"I
agree
Gilles Létourneau J.A."
"I
agree
C. Michael Ryer J.A."
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