Docket: A-514-15
Citation:
2016 FCA 268
|
CORAM:
|
PELLETIER J.A.
WEBB J.A.
NEAR J.A.
|
|
BETWEEN:
|
|
TANIA ZULKOSKEY
|
|
Appellant
|
|
and
|
|
CANADA
(MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT)
|
|
Respondent
|
REASONS
FOR JUDGMENT
NEAR J.A.
I.
Introduction
[1]
The appellant, Tania Zulkoskey, appeals from the
October 29, 2015 decision of the Federal Court (2015 FC 1196) in which the
application judge dismissed her application for judicial review of the Canadian
Human Rights Commission (the Commission)’s decision to not deal with her human
rights complaint because it was vexatious within the meaning of paragraph
41(1)(d) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the
CHRA).
II.
Background
[2]
The appellant and her spouse have paid
Employment Insurance (EI) premiums for many years. The appellant gave birth to
twins on July 10, 2009. Due to the work required to care for the twins, the
appellant and her spouse each requested 35 weeks of EI parental benefits. The
spouse’s request was approved. The EI Commission denied the appellant’s request
on the basis that the appellant’s spouse had already received the maximum
parental benefits under the Employment Insurance Act, S.C. 1996, c. 23
(the EI Act). The EI Act allows for one set of parental benefits per
pregnancy.
[3]
The appellant appealed the EI Commission’s
decision to the Board of Referees and then to the Umpire. The issue on appeal
was whether the appellant was entitled to EI parental benefits. On consent, the
appellant’s appeal to the Umpire was stayed pending the outcome in Martin v.
Canada (Attorney General), 2013 FCA 15, [2014] 3 F.C.R. 117 [Martin]
, where a father of twins had appealed the denial of his request for a second
set of EI parental benefits, additional to those received by his spouse. The
appellant had initially proposed that the outcome in Martin be binding
on her appeal but, ultimately, the stay was granted without conditions.
[4]
In Martin, this Court found that the EI
Act provides 35 weeks of parental benefits per single pregnancy or adoption,
not 35 weeks per child. This Court also found that the EI parental benefits
scheme is not discriminatory on the basis of family/parental status and,
therefore, does not violate subsection 15(1) of the Canadian Charter of
Rights and Freedoms (the Charter). The Supreme Court of Canada
denied leave to appeal Martin on June 27, 2013 (Martin v. Canada
(Attorney General), [2013] S.C.C.A. No. 122).
[5]
All of the appeals before the Umpire that were
stayed pending the outcome in Martin were transferred to the Social
Security Tribunal, Appeal Division (SST-AD). The SST-AD subsequently dismissed
all of the appeals, including the appellant’s appeal. The SST-AD stated that Martin
settled all aspects of the issue of parental benefits and multiple-child
pregnancies, including the constitutional challenge to the EI Act (AB, Tab
6(g), pp. 283-84, paras.7-8). The appellant did not seek judicial review of the
SST-AD’s decision.
[6]
The appellant filed a complaint with the
Commission, alleging that the “per pregnancy”
restriction under the EI parental benefits scheme discriminated against her on
the ground of family status.
[7]
The Commission requested that the appellant
provide a position letter on whether the Commission should not deal with her
complaint, pursuant to paragraph 41(1)(d) of the CHRA. The Commission stated
that “the issue is whether or not [the appellant’s]
complaint may be vexatious” because the human rights allegations “may have already been dealt with through another process”
(AB, Tab 5(a), pp. 46-49).
[8]
A Section 40/41 Report was prepared to address
whether the appellant’s complaint was vexatious within the meaning of paragraph
41(1)(d) and to make a recommendation to the Commission on this basis (AB, Tab
6(l), pp. 296-298, 304, paras. 4, 8-16, 66). The Report identified the factors
relating to vexatiousness, summarized the parties’ position letters, summarized
the Martin case, and compared the legal tests under the CHRA and the Charter.
The Report recommended that the Commission not deal with the appellant’s
complaint because the appellant’s other process had “addressed
the allegations of discrimination overall” (AB, Tab 6(l), p. 309, para. 98).
Each party responded to the Report and availed themselves of the opportunity to
respond to each other’s submissions to the Report.
[9]
The Commission ultimately decided not to deal
with the appellant’s complaint, pursuant to paragraph 41(1)(d) of the CHRA. The
Commission adopted the Section 40/41 Report’s conclusion. The Commission
accepted that the SST-AD relied on Martin in dismissing the appellant’s
EI Act appeal and that the appellant’s allegations of discrimination were
essentially the same as those decided upon by this Court in Martin, even
though Martin alleged discrimination under section 15 of the Charter (AB,
Tab 4, pp. 38-39).
[10]
The appellant sought judicial review of the
Commission’s decision to not deal with her human rights complaint on the grounds
that the decision was unreasonable and that the Commission breached procedural
fairness.
III.
Federal Court Decision
[11]
The application judge reviewed the Commission’s
decision to not deal with the appellant’s complaint on a reasonableness
standard. The application judge determined that the Commission was entitled to “higher deference” and should be afforded “great latitude” because it was making a discretionary
decision based on factual and policy considerations (reasons at paras. 26-27).
The application judge found that the Section 40-41 Report erroneously concluded
that the SST-AD finally determined the appellant’s allegations of
discrimination. He found that the appellant did not raise human rights issues
until she filed her CHRA complaint and that the SST-AD proceedings only dealt
with the interpretation of the relevant provisions in the EI Act (reasons at
para. 56). The application judge concluded, however, that the Commission’s
reliance on Martin, alone, justified its decision not to deal with the
appellant’s complaint. The application judge stated that even though Martin involved
a different complainant, the decision determined the appellant’s underlying
facts and arguments such that it “negates any prospect
for success in her case” (reasons at para. 65).
[12]
The application judge determined that the
standard of review for determining procedural fairness is correctness. Based on
the Baker factors, the appellant was owed a lesser degree of procedural
fairness (reasons at para. 42). The application judge found that the Commission
informed the appellant of what it would consider in deciding whether to deal
with her complaint and gave her ample opportunity to provide submissions. The
application judge found that the Section 40/41 Report, upon which the
Commission based its decision, was neutral and sufficiently thorough,
accurately summarized the parties’ submissions, and comprehensively examined
the factors to determine whether a claim is vexatious (reasons at paras.
43-45).
IV.
Issues
[13]
I would characterize the issues on appeal as
follows:
1. What is the correct standard of review to be applied to the
Commission’s decision to not deal with the appellant’s complaint?
2. Was the Commission’s decision to not deal with the appellant’s
complaint reasonable?
3. Was the Commission’s decision to not deal with the appellant’s
complaint procedurally fair?
V.
Analysis
A.
Standard of Review
[14]
On an appeal of an application for judicial
review, this Court must determine whether the application judge chose the
correct standard of review and applied it properly. In doing so, this Court “step[s] into the shoes” of the Federal Court judge (Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras.
45-47, [2013] 2 S.C.R. 559).
[15]
The parties agreed that the Commission’s
decision not to deal with the appellant’s complaint is to be reviewed on a
reasonableness standard. While their agreement does not bind me, I find that
the parties have settled on the appropriate standard of review (Bergeron v.
Canada (Attorney General), 2015 FCA 160 at para. 40, 255 A.C.W.S. (3d) 955
[Bergeron]). The parties spent considerable effort in making arguments
that would either decrease, on the part of the appellant, or increase on the
part of the respondent, the “margin of appreciation”
to be afforded the Commission in reaching its decision. In my view, analyzing
reasonableness in an attempt to assign some greater or lesser amount of
deference to the Commission is of no assistance here. In this matter, the
question to be answered is, given the overall context, was the Commission’s
decision not to deal with the appellant’s complaint based upon the vexatious
ground set out in paragraph 41(1)(d) reasonable. Nothing more and nothing less
(see Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 at paras. 18,
73, 399 D.L.R (4th) 193).
B.
Reasonableness of the Commission’s Decision
[16]
This Court should consider the Section 40/41
Report as part of the Commission’s reasons for its decision to not deal with
the appellant’s complaint (Sketchley v. Canada (Attorney General), 2005
FCA 404 at para. 37, [2006] 3 F.C.R. 392; Bergeron at para. 60). The
Commission’s decision consists of a verbatim copy of the conclusion contained
in the Section 40/41 Report.
[17]
The Commission informed the appellant that it
was considering whether or not to deal with her complaint as it may be “vexatious” under paragraph 41(1)(d). The Commission
considers a complaint vexatious where “the human rights
issues in [the] complaint may have already been dealt with through another
process” (AB, Tab 5(a), pp. 46-49; Tab 6(l), p. 296, p. 304, paras. 4,
9, 66).
[18]
In British Columbia (Workers’ Compensation
Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 [Figliola], the
Supreme Court considered a provision of the British Columbia Human Rights
Code, R.S.B.C. 1996, c. 210, para. 27(1)(f), that is similar to paragraph
41(1)(d) in the CHRA. A complaint could be dismissed where “the substance of the complaint or that part of the complaint
has been appropriately dealt with in another proceeding”. Justice Abella
found that the provision reflected the principles of the doctrines of finality
– issue estoppel, collateral attack and abuse of process (Figliola at
paras. 24-25). In Bergeron, this Court summarized the Figliola
factors used to assess whether a human rights complaint has already been dealt
with in a prior proceeding (at para. 50):
- Was there concurrent jurisdiction to decide human
rights issues?
- Was the legal issue in the alternate forum essentially the same
as the legal issue in the human rights complaint?
- Did the complainant
have the opportunity to know the case to meet and have a chance to meet
it?
Figliola and Bergeron
addressed circumstances where the same complainant received a final decision on
allegations of discrimination in a prior proceeding then raised discrimination
again in a human rights proceeding.
[19]
The Commission’s stated approach to
vexatiousness reflects the Figliola factors. As shown in the
Commission’s correspondence with the appellant and the Section 40/41 Report,
the Commission considers the following factors when deciding whether or not a
complaint is vexatious (AB, Tab 5(a), pp. 48-49; Tab 65(l), pp. 297-98, para.
16):
- Has a final decision been made in another process?
- Did the decision-maker in the other process have the authority
to decide human rights issues?
- Were the issues raised during the other process essentially the
same as the issues in this complaint?
- Were all the human rights issues addressed?
- Did the complainant have a chance to raise all relevant human
rights issues?
- Is there a
significant difference between the other process and the Commission
process?
[20]
The Section 40/41 Report identifies the
appellant’s other process as her EI Act appeal before the SST-AD (AB, Tab 6(l),
pp. 304, 309, paras. 67, 96). The Report emphasizes that the SST-AD relied on
this Court’s decision in Martin to dismiss the appellant’s appeal (AB,
Tab 6(l), pp. 304-309, paras. 67, 73, 75, 96). The Commission’s reasons state
that both the SST-AD and this Court had jurisdiction to decide human rights
issues (AB, Tab 6(l), pp. 305, 309, paras. 71, 96). The reasons also state that
the allegations of discrimination in the appellant’s CHRA complaint are
essentially the same as those raised and finally decided on by the SST-AD in
the appellant’s EI Act appeal and by this Court in Martin under section
15 of the Charter (AB, Tab 6(l), pp. 305-306, 308, paras. 75-77, 96). The
investigator acknowledges that the appellant did not raise the CHRA before the
SST-AD. However, the Commission concludes that Martin’s Charter
analysis, on which the SST-AD relied, sufficiently examined the appellant’s
allegations of discrimination and would be similar to an analysis under the
CHRA (AB, Tab 6(l), pp. 305, 308-309, paras. 76, 92, 96-97).
[21]
In my view, the Commission unreasonably applied
paragraph 41(1)(d) to the appellant’s complaint. Counsel for the respondent
conceded that the appellant did not raise human rights issues prior to filing
her CHRA complaint and that the SST-AD’s decision was limited to the statutory
interpretation of the relevant EI Act provisions. The SST-AD only applied
Martin to find that, under the EI Act, the appellant was entitled to a single
set of benefits per pregnancy, not per child. The appellant did not raise any
allegations of discrimination, under the Charter or the CHRA, to which the
SST-AD could have applied Martin. The appellant did not receive a final
decision regarding human rights issues at the SST-AD. As the appellant is not
attempting to re-litigate an issue on which she has already received a final
decision, vexatiousness and the Figliola factors do not apply to the
appellant’s CHRA complaint.
[22]
The respondent argues that the Commission could
reasonably dismiss the appellant’s complaint based on Martin alone. It
may be that the Commission could properly dismiss the appellant’s complaint if,
having accepted her allegations, it finds that the complaint has no reasonable
prospect of success. However, such a complaint would be considered frivolous
within the meaning of paragraph 41(1)(d) (Love v. Canada(Privacy
Commissioner), 2015 FCA 198 at para. 23, 259 A.C.W.S. (3d) 130). Although
frivolous is included alongside vexatious in paragraph 41(1)(d), the Commission
clearly limited its analysis to the factors relating to vexatiousness and the
appellant’s other process. The Commission asked the parties to provide
submissions on vexatiousness only and to not include evidence related to the
allegations of discrimination (AB, Tab 5(a), pp. 47-49; Tab 5(c), p. 150).
[23]
I recognize that the vexatious ground in
paragraph 41(1)(d) is intended to be interpreted flexibly to prevent
multiplicity of proceedings and waste of resources on re-litigation (Figliola
at para. 36). This Court adjudicated Mr. Martin’s allegations of discrimination
under the Charter. The allegations of discrimination in Martin
may be essentially the same as those raised in the appellant’s CHRA complaint.
On this basis, the appellant’s complaint may inevitably fail. However, the
Commission based its decision to not deal with the appellant’s complaint solely
on vexatiousness which raises particular legal principles, specifically that
the appellant must have received a final decision on her allegations of
discrimination. The adjudication of Mr. Martin’s allegations of discrimination
cannot be used as a substitute. As a result, the Commission’s decision does not
fall within a range of acceptable and defensible outcomes that could be reached
under the ground of vexatious in paragraph 41(1)(d).
[24]
The Commission misconceived the basis of the
SST-AD’s dismissal of the appellant’s appeal from the decision of the EI
Commission. This led the Commission to ask itself whether the appellant’s CHRA
complaint was vexatious. Had the Commission properly understood the basis of
the SST-AD’s dismissal and, had it thought that this Court’s decision in Martin
was conclusive on the issue raised in the appellant’s complaint, it could have
properly raised this with the appellant. After hearing the appellant’s
submissions on this point, the Commission could have decided whether the
complaint was frivolous, in the narrow legal sense of having no prospect of
success. In my view, this approach is still open to the Commission when it
reconsiders the matter. The Commission must manage scarce resources; it is open
to the Commission to not proceed with a complaint that, in its view, has no
prospect of success. I wish to make it clear that I do not believe that the
appellant’s complaint is frivolous in the colloquial sense of the term. I
appreciate that this matter is very important to the appellant and to those in
similar circumstances.
C.
Procedural Fairness
[25]
Given my conclusion above, it is not necessary
to determine whether the Commission breached procedural fairness in coming to
its decision to not deal with the appellant’s complaint. However, in my view,
the appellant’s submissions on this issue are without merit. The Commission did
not make a clear, unambiguous, and unqualified promise that it would consider
the appellant’s original position letter when making its decision on whether to
deal with her complaint. The initial correspondence to the appellant stated
that the Commission would use “the parties’ submissions
to the report” (AB, Tab 5(a), p. 46). Correspondence seeking the
appellant’s submissions to the Section 40/41 Report stated (AB, Tab 5(c), p.
150):
The Commission will decide based on the
[Report], the complaint form, and any submissions (comments) it has received
from the parties. For this reason, if you disagree with information in the
report, it is important that you take this opportunity to make a submission.
The Commission clearly communicated that it
would consider the parties’ submissions that were made in response to the
Section 40/41 Report. The Commission followed this stated procedure in coming
to its decision.
[26]
The appellant was provided a full opportunity to
present her position on why the Commission should deal with her complaint. The
arguments made in her original position letter were repeated in the Section
40/41 Report, including: the limited scope of the SST-AD proceeding; the
inapplicability of Martin; and the heavy burden on the Commission to
only dismiss complaints in plain and obvious cases. In addition to the Section
40/41 Report, the Commission specifically reviewed the appellant’s submissions
to the Report and the appellant’s response to the respondent’s submissions to
the Report.
D.
Conclusion
[27]
I would allow the appeal, with costs, and refer
the matter back to the Commission for reconsideration.
"David G. Near"
“I agree.
J.D. Denis Pelletier”
“I agree.
Wyman W. Webb”
APPENDIX
|
Canadian Human Rights Act, R.S.C., 1985, c. H-6
Commission to deal with complaint
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
(a) the alleged victim of the
discriminatory practice to which the complaint relates ought to exhaust
grievance or review procedures otherwise reasonably available;
(b) the complaint is one that could more
appropriately be dealt with, initially or completely, according to a procedure
provided for under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the Commission;
(d) the complaint is trivial, frivolous,
vexatious or made in bad faith; or
(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.
[…]
|
Loi canadienne
sur les droits de la personne , L.R.C., 1985, c. H-6
Irrecevabilité
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 :
(a) la victime présumée de l’acte discriminatoire devrait épuiser
d’abord les recours internes ou les procédures d’appel ou de règlement des
griefs qui lui sont normalement ouverts;
(b) la plainte pourrait avantageusement être instruite, dans un
premier temps ou à toutes les étapes, selon des procédures prévues par une
autre loi fédérale;
(c) la
plainte n’est pas de sa compétence;
(d) la plainte
est frivole, vexatoire ou entachée de mauvaise foi;
(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.
[…]
|
Email this Content