Docket: T-1203-15
Citation:
2017 FC 438
Ottawa, Ontario, May 3, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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DANUSIA
KLIMKOWSKI
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Applicant
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and
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CANADIAN
PACIFIC RAILWAY
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
In 1986 Ms. Danusia Klimkowski, the applicant, began
working for the respondent Canadian Pacific Railway Limited [CPR]. In 1995 she
suffered an injury to her left ankle. She did not return to work until 2001. In
2006 she re-injured her ankle and was off work until 2012. After commencing a return-to-work
program, her employment was terminated for cause on August 15, 2013.
[2]
The Teamsters Canada Rail Conference [the Union],
grieved the termination on her behalf. The grievance was referred to
arbitration. In July 2014 the arbitrator upheld the termination and dismissed
the grievance. In August 2014 Ms. Klimkowski submitted a compliant [Complaint]
to the Canadian Human Rights Commission [CHRC or Commission] alleging the CPR
had discriminated against her.
[3]
In a decision dated June 10, 2015, the CHRC declined
to deal with the Complaint [the CHRC decision]. The CHRC held that the essence
of the Complaint had been dealt with in the arbitration process where the arbitrator
had concluded that there was no discrimination and the termination was
justified.
[4]
In seeking judicial review of the CHRC decision Ms.
Klimkowski argues that the CHRC erred in fact and law, and the process was
unfair. She submits the Commission improperly evaluated and applied paragraph 41(1)(d)
of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA].
[5]
Having reviewed the record and having considered
the parties oral and written submissions I am unable to conclude that the CHRC
committed a reviewable error. The decision was reasonable and there was no
breach of procedural fairness. For the reasons that follow the application is
dismissed.
II.
Issues
[6]
The application raises the following issues:
A.
Was there a breach of procedural fairness?
B.
Was the decision reasonable? This issue engages
two sub-issues:
i.
Did the Commission err by finding the Complaint
to be “vexatious” within the meaning of paragraph 41(1)(d) of the CHRA; and
ii.
Did the Commission err by finding the Complaint
to be “frivolous” within the meaning of paragraph 41(1)(d) of the CHRA?
III.
Standard of Review
[7]
The parties agree that questions of fairness,
including whether submissions were considered by a decision-maker, are to be
reviewed against a standard of correctness (Dunsmuir v New Brunswick,
2008 SCC 9 at para 129 [Dunsmuir]; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa]; Carroll v
Canada (Attorney General), 2015 FC 287 at para 23 [Carroll]; Canadian
Museum of Civilization v Public Service Alliance of Canada, 2014 FC 247 at
para 40).
[8]
In Public Service Alliance of Canada v Canada
(Attorney General), 2015 FCA 174 at para 28, Justice Near, writing
for a unanimous Federal Court of Appeal held that “Reasonableness
is presumed to be the standard of review applicable to the Commission’s
decision, which involved the application of the legal standards set out in the
CHRA – its home statute – to a set of facts”. The jurisprudence further establishes
that in the exercise of its screening function under sections 40, 41 and 44 of
the CHRA the Commission has been granted “a remarkable
degree of latitude” (Bell Canada v Communications, Energy and
Paperworkers Union of Canada, [1998] FCJ No 1609 at para 38, 167 DLR (4th)
432 (CA) [Bell Canada]; also see Canada (Attorney General) v Davis,
2010 FCA 134 at para 5; Tsui v Canada Post Corp, 2010 FC 860 at para 21).
[9]
It is against this standard that I will consider
the reasonableness of the Commission’s decision not to deal with the Complaint.
IV.
Role of the Commission
[10]
At the outset it will be of some value to review
the role and function of the Commission in the complaint screening process
established under the CHRA.
[11]
The Commission is established under section 26
of the CHRA and consists of a Chief Commissioner, a Deputy Chief Commissioner
and three to six members. Section 32 provides for the appointment of such officers
and employees as necessary for the proper conduct of the work of the Commission
in accordance with the Public Service Employment Act, SC 2003, c 22, ss 12,
13.
[12]
Subsection 40(1) of the CHRA provides, subject
to prescribed limitations and exceptions, any individual having reasonable
grounds for believing that a person is engaging or has engaged in a
discriminatory practice, as that term is defined at section 39, may file a
complaint with the Commission. Subsection 41(1) in turn requires the Commission
to deal with any complaint filed, but enumerates prescribed grounds where the
Commission may decide not to deal with a complaint including, for the purpose
of this judicial review application, where it finds the complaint to be
trivial, frivolous, vexatious or made in bad faith (Paragraph 41(1)(d) of the
CHRA).
[13]
As noted at paragraph 35 of Bell Canada
the role of the Commission is one of “an administrative
and screening body” (citing Cooper v Canada (Human Rights Commission),
[1996] 3 S.C.R. 854 at para 58 [Cooper]). It does not decide a complaint on
its merits. The primary function of the Commission is the assessment of the
sufficiency of the evidence before it for the purpose of determining whether
the complaint should proceed to the next stage (Cooper at para 53). In
this case that assessment was undertaken in the completion of a section 40/41
report to assist the Commission in determining whether it should refuse to deal
with the Complaint under paragraph 41(1)(d) of the CHRA.
V.
Background
A.
Circumstances Leading to the Termination of
Employment
[14]
After suffering a severe left ankle sprain in
1995, a work related injury, and after a number of unsuccessful attempts to
return to her pre-injury position Ms. Klimkowski returned to work in 2001 and
was re-trained as a Locomotive Engineer. She achieved that qualification in the
2002/2003 period and then commenced maternity leave. She remained off work
until 2005. In 2006 she re-injured her left ankle and was once again off work
until 2012 when she commenced a return to work program. That program was
suspended in the fall of 2012 due to a related medical issue. She recommenced the
return to work program in May or June 2013.
[15]
In May of 2013 the CPR received reports that
Ms. Klimkowski had been observed performing activities outside the workplace that
were inconsistent with her employment limitations. Based on these reports the
CPR undertook video surveillance of Ms. Klimkowski between May 16, 2013 and
June 24, 2013. After an internal investigation that relied on the video surveillance
evidence Ms. Klimkowski’s employment was terminated on the grounds that she had
misrepresented her functional abilities.
B.
The Grievance Arbitration
[16]
The Union grieved the termination contending
that it had not been conducted in a fair and impartial manner. The Union
alleged the termination was in breach of the Collective Agreement and the CHRA.
The Union argued the termination was contrary to the duty to accommodate Ms.
Klimkowski’s disability and ensure a discrimination and harassment free work environment.
The grievance was referred to arbitration where the issues were argued.
[17]
The Union’s submissions before the arbitrator
included the following: (1) the video surveillance evidence was not admissible;
(2) that the CPR had made untrue and defamatory comments to the Workplace Safety
and Insurance Board [WSIB] and those statements constituted discrimination and
harassment based on Ms. Klimkowski’s disability; and (3) the termination was
without cause, discriminatory and contrary to the CHRA.
[18]
The CPR submitted that: (1) the video surveillance
evidence was admissible; (2) subsequent to the original injury Ms. Klimkowski
had been accommodated or attempts had been made to do so; and (3) the company’s
actions were not in violation of the CHRA.
[19]
The arbitration decision set out Ms.
Klimkowski’s work and injury history in some detail with a particular focus on
events between March 2012 and her termination in the summer of 2013. In particular
the decision highlighted:
A.
A series of Functional Ability Forms reflecting
adjustments and changes to Ms. Klimkowski’s injury related restrictions completed
by her physician in the May 2012 to May 2013 period;
B.
WSIB correspondence reviewing Ms. Klimkowski’s
obligations while in receipt of WSIB benefits;
C.
Workplace assessments completed by occupational
therapists in June 2012, March 2013 and May 2013 resulting in recommendations
to accommodate Ms. Klimkowski’s limitations and concluding in March 2013 that “…the greivor was able to demonstrate safely climbing up and
down the stairs of two locomotives while wearing [an ankle foot and lower leg
brace]”.
D.
That the CPR was of the view that Ms. Klimkowski
had prolonged her recovery and delayed her return to work and based on reports
from employees and knowledge of improperly claimed WSIB expenses, the CPR
engaged an investigator to undertake video surveillance which spanned a 9 day
period between May 16 and June 24, 2013 collecting 2 hours and 31 minutes of
video.
[20]
The arbitrator considered and rejected the Union’s
argument that the CPR investigation had been biased. The arbitrator then
considered the Union objections to the admissibility of the video evidence. The
arbitrator concluded, upon consideration of the record as a whole, that it
would have been difficult for the CPR not to suspect Ms. Klimkowski had prolonged
her recovery and delayed her return to work process. The arbitrator further
concluded the surveillance was not unduly intrusive and that the accuracy of
the video had been confirmed by Ms. Klimkowski. The arbitrator found that the
only conclusion to be drawn from the video was that Ms. Klimkowski had misrepresented
her physical abilities to the CPR and her termination was an appropriate
penalty.
[21]
The Union did not seek judicial review of the arbitration
decision and Ms. Klimkowski did not initiate a complaint against the Union
pursuant to the latter’s duty of fair representation.
C.
The Complaint to the Canadian Human Rights
Commission
(1)
The Complaint
[22]
Ms. Klimkowski submitted the Complaint to the
CHRC in August 2014, alleging that the CPR had discriminated against her in
that it had:
A.
Terminated her employment contrary to the
employment provisions of the CHRA;
B.
Treated her unfairly in the workplace contrary
to the employment provisions of the CHRA;
C.
Sent her letters and communicated with the WSIB
in a discriminatory manner and in a manner that provoked the WSIB to
discriminate against her; and
D.
Harassed her on the basis of disability and sex.
[23]
Counsel for Ms. Klimkowski submitted an amendment
to her Complaint on October 14, 2014 [the Amended Complaint]. The Amended Complaint
included allegations with respect to systemic and personal discrimination on
the basis of disability and sex, as well as harassment on the basis of
disability.
[24]
On September 8, 2014, the CHRC investigator advised
the parties that paragraph 41(1)(d) of the CHRA may apply as the human rights
issues raised in the Complaint may have already been dealt with through the
arbitration process. The investigator advised the parties that a section 40/41
report would be prepared to assist the CHRC in deciding whether to deal with
the Complaint. The parties were invited to provide their positions on this
issue by October 15, 2014.
[25]
In responding, the CPR argued that the Complaint
was indeed vexatious within the meaning of the CHRA as “…another
legitimate procedure has appropriately dealt with essentially the same issues
and substance of the alleged discrimination and that the Commission should,
therefore, not deal with the Complaint per Section 41(1)(d) of the Act”.
The CPR noted that the Canada Labour Code, RSC 1985, c L-2 vests an
arbitrator with jurisdiction over all aspects of a dispute including those
arising from a company’s statutory obligations. The CPR submitted that there was
no substantial divergence between the issues addressed in the arbitration and
the Complaint initiated, and there had been ample opportunity to raise all relevant
human rights issues in the arbitration process.
[26]
Ms. Klimkowski submitted that it was the Union,
not her, who had carriage of the arbitration process and the Union had not raised
any argument or led any evidence with respect to the CHRA issues raised in her Complaint
and her Amended Complaint. She submitted that the arbitration decision only
addressed the fairness of the investigation leading to her termination, but did
not address the core issues underlying the Complaint as they related to her
allegations of systemic and personal discrimination and harassment on the basis
of sex and disability.
[27]
On February 16, 2015 the investigator provided
the parties with the completed 40/41 report and the opportunity to make
submissions in response to the report [Section 40/41 Report].
(2)
The Section 40/41 Report
[28]
The Section 40/41 Report first addressed whether
the Complaint was vexatious under paragraph 41(1)(d) of the CHRA. In doing so
the investigator noted that the allegations relating to harassment and systemic
discrimination were not supported by particulars. The Section 40/41 Report does
not further assess these particular allegations.
[29]
The Section 40/41 Report noted that the
arbitrator was an independent third party and the arbitration decision
extensively considered Ms. Klimkowski’s employment from 2001 onwards. The investigator,
relying on the Supreme Court of Canada’s decision in British Columbia
(Workers’ Compensation Board) v Figliola, 2011 SCC 52 [Figliola] concluded
that there is a requirement that the CHRC respect the finality of decisions
made by other administrative decision-makers with concurrent jurisdiction.
[30]
The Section 40/41 Report then considered Ms. Klimkowski’s
submission that the arbitrator did not address her human rights related
allegations. The investigator again found insufficient particulars to support
allegations of systemic discrimination. With respect to the allegations of personal
harassment and discrimination on the ground of disability the investigator
determined these allegations had been addressed in the arbitration process. The
investigator then concluded that allegations related to personal harassment and
discrimination based on the prohibited ground of sex had not been directly
addressed in the arbitration decision. However, the investigator held that
there had been an opportunity to raise these issues in the arbitration and the
allegations of discrimination based on sex were interrelated to the disability
complaint. The Section 40/41 Report concluded that the essence of the Complaint
was dealt with by the arbitrator.
[31]
In reaching this conclusion the Section 40/41
Report recognized, relying on Penner v Niagara (Regional Police Services
Board), 2013 SCC 19 [Penner], that where there had been a
previous process there is a requirement for the decision-maker in the second
process to consider the circumstances and decide whether it would be fair to
let the second process continue. In doing so there is a need to consider if the
first process was procedurally fair. Further, even if the first process had
been fair it is necessary to consider if it would be nonetheless unfair to use
the result of the first process to halt the second process. In this regard the Section
40/41 Report noted the absence of practical remedies in light of the
arbitrator’s finding of no discrimination and that the termination was
justified.
[32]
The Section 40/41 Report found the grievance
procedure and arbitration were procedurally fair and that Ms. Klimkowski’s issues
with Union representation did not render the process unfair. The investigator
concluded that Ms. Klimkowski’s dissatisfaction with the outcome is not
sufficient to trigger a requirement for the CHRC to deal with the Complaint. It
noted the CHRC is not an appeal body and that adjudication of the Complaint
will not advance the purpose of the CHRA. The investigator found that justice
does not require the CHRC deal with the Complaint. The Section 40/41 Report determined
the Complaint to be vexatious pursuant to paragraph 41(1)(d) of the CHRA as the
essence of the Complaint had been dealt with in the grievance/arbitration
process and that there was no information to suggest that it would be unfair
for the CHRC to refuse to deal with the Complaint.
[33]
The Section 40/41 Report also determined that
the Complaint, as it relates to harassment and discrimination on the basis of
sex was frivolous pursuant to paragraph 41(1)(d) of the CHRA. The Section 40/41
Report found that there is no reasonable grounds to believe that the
allegations of discrimination set out in the Complaint are linked to the
prohibited ground of sex under the CHRA.
D.
Decision under Review
[34]
On June 10, 2015, the Deputy Chief Commissioner
of the CHRC [Commissioner] cited and adopted the conclusions of the Section
40/41 Report, finding that the Complaint was vexatious and the allegation of
discrimination based on the prohibited ground of sex was frivolous pursuant to
paragraph 41(1)(d) of the CHRA.
[35]
In adopting the Section 40/41 Report, the latter
becomes the Commissioner’s reasons (Canada (Attorney General) v Davis,
2009 FC 1104 at para 52 [Davis FC]; Vos v Canadian National Railway
Company, 2010 FC 713 at para 36).
VI.
Analysis
A.
Was there a breach of procedural fairness?
[36]
Ms. Klimkowski argues that the Commission acted
unfairly in failing to conduct a thorough investigation of the Complaint. First
the Commission ignored her Amended Complaint. She further argues that she was
unfairly denied a copy of the position statement prepared by the CPR in
response to the investigator’s September 8, 2014 request to the parties for a
position statement in advance of preparing the Section 40/41 Report. In
addition she argues that her April 6, 2015 reply to the Section 40/41 Report was
ignored as were unsolicited submissions dated June 18, 2015 and the reasons
given in refusing to deal with the Complaint were inadequate. She also argues
that in blindly adopting the findings of the grievance arbitrator the process
was procedurally unfair. This final argument does not, in my opinion, raise an
issue of fairness but rather a question of mixed fact and law relating to the
reasonableness of the CHRC decision. This issue is addressed in the second part
of this analysis.
[37]
At the outset I note that Ms. Klimkowski’s written
submissions make reference to both natural justice and procedural fairness. In
this regard I am in agreement with the respondent, the CHRC is not bound by the
formal rules of natural justice but is bound by the principles and rules of
procedural fairness (Syndicat des employés de
production et de l’Acadie v Canada (Human Rights
Commission), [1989] 2 S.C.R. 879 at para 27 and Robinson
v Canada (Human Rights Commission), [1995] FCJ No 16 at para 14, 90
FTR 43 (TD)). This distinction is relevant when one recognizes that content of
the duty of procedural fairness is contextually driven.
[38]
In Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 at para 21 [Baker], Justice
L’Heureux-Dubé reaffirmed that the content of the duty of procedural fairness
varies based on the context of the case. Justice L’Heureux-Dubé set out five
non-exhaustive factors for determining the content of the duty of procedural
fairness owed: (1) the nature of the decision being made and the process
followed in making it; (2) the nature of the statutory scheme; (3) the
importance of the decision to the individual or individuals affected; (4) the
legitimate expectations of the person challenging the decision; and (5) “the choices of procedure made by the agency itself” (Baker
at paras 23-27). The Baker list is non-exhaustive and reflects “the principle that the individual or individuals affected
should have the opportunity to present their case fully and fairly, and have
decisions affecting their rights, interests, or privileges made using a fair,
impartial, and open process, appropriate to the statutory, institutional, and
social context of the decision” (Baker at para 28).
[39]
Jurisprudence in the CHRC context has considered
the Baker factors and noted that the content of the duty of procedural
fairness may differ where the Commission is dismissing a complaint as opposed
to allowing the complaint proceed to the next stage in the complaint process (Davis
FC at para 56; Canada Post Corp v Canadian Postmasters and Assistants Assn,
2016 FC 882 at para 37). This, in my view acknowledges the varying nature of
the content of the duty of procedural fairness and affirms the principle that the
extent of the duty is defined by context, including the impact of the decision
on the affected individual.
[40]
Ms. Klimkowski alleges that the failure to
acknowledge and address the Amended Complaint was procedurally unfair. She
relies on Carroll to advance the position that ignoring a complainant’s
submissions amounts to a breach of procedural fairness and where the reasons omit
any mention of those submissions this might constitute evidence that they were ignored
(Carroll at paras 77 and 78).
[41]
In this case I am unable to conclude that Ms.
Klimkowski’s submissions, including her Amended Complaint were ignored.
Although the Section 40/41 Report does not does not make direct reference to the
Amended Complaint and the latter was not included in the documents placed
before the Commissioner the contents of the Amended Complaint are reflected in
the substance of the Section 40/41 Report.
[42]
In her October 15, 2014 position statement,
provided in response to the investigator’s invitation to provide submissions on
the applicability of section 41(1)(d), Ms. Klimkowski substantially reproduced
the contents of the Amended Complaint. The 40/41 Report references and quotes
from that position statement. In doing so the Section 40/41 Report reproduces, in
part, the allegations of harassment and systemic discrimination from the
Amended Complaint and then directly addresses the allegations.
[43]
While it may have been preferable in the
circumstances of this case for the investigator to have made express reference
to the October 14, 2014 amendment to the Complaint, it is clear that the
contents of the Amended Complaint were known to the investigator. The content
of the Amended Complaint is reflected in the Section 40/41 Report and the Commissioner
was aware of that content through both the 40/41 Report and through Ms. Klimkowski’s
response to that Report.
[44]
Unlike Carroll, where Justice Mosely
concluded at paragraph 79 that the submissions of the complainant had been ignored,
Ms. Klimkowski’s allegations of discrimination were acknowledged and addressed
in the Section 40/41 Report. The crux of the issue raised by Ms. Klimkowski was
not a lack of awareness of the nature and extent of her Complaint, the issue in
Carroll, rather, Ms. Klimkowski took issue with the conclusion reached
in the Section 40/41 Report and adopted by the Commissioner – her allegations
of harassment and systemic discrimination were unsupported by particulars. This
disagreement does not render the process procedurally unfair.
[45]
With respect to Ms. Klimkowski’s argument that
she was unfairly denied the opportunity to review and comment on submissions
provided by the CPR, I am similarly unable to conclude that the circumstances
disclose any breach of fairness.
[46]
Ms. Klimkowski was given the opportunity to make
submissions in advance of the completion of the Section 40/41 Report, as was
the CPR. Neither party was provided the opportunity to review or reply to the
other party’s submissions in advance of the completion of the Section 40/41 Report.
Instead the parties were provided with the Report. In providing the Report to
the parties for comment the investigator disclosed the submissions that had
been made and relied upon in the completion of the Report. The parties were
extended the opportunity to make submissions on the Section 40/41 Report.
[47]
The CPR did not provide a substantive reply to
the Report and merely expressed its full agreement with the recommendation that
the CHRC not deal with the Complaint. Ms. Klimkowski did provide a substantive
reply and the latter was placed before the Commissioner. The investigator also
provided the CPR with an opportunity to respond to Ms. Klimkowski’s substantive
response to the Section 40/41 Report, which it did on May 13, 2015. Presumably
a similar opportunity would have been provided to Ms. Klimkowski had the CPR
provided a substantive initial reply. Ms. Klimkowski argues that procedural fairness
required she be given the opportunity to provide a sur-reply in response to the
CPR submissions before the Commissioner.
[48]
In Madsen v Canada (Attorney General),
[1996] FCJ No 99, 106 FTR 181 (TD), Justice Darrel Heald states at
paragraph 28 that:
Applying the Mercier test to the
facts in the case at bar, I am of the view that if either party's second
submissions contained facts that differed from those set out in the
Investigation Report, Conciliation Report or earlier submissions, then the
rules of procedural fairness may have required the CHRC to cross-disclose the
second set of submissions and to permit the parties to file a third set of
submissions. However, I must also express my agreement with the Federal
Court of Appeal, that the rules of procedural fairness do not require the CHRC
to "systematically disclose to one party the comments it receives from the
other". Otherwise, the submissions/reply process could conceivably
continue ad infinitum. [Emphasis added]
[49]
In Gosal v Canada (Attorney General), 2011
FC 570, Justice Gauthier states at paragraphs 58 to 60:
[58] Finally, in respect of the
obligation to provide to a particular complainant every piece of documentation
exchanged between an investigator and an interested party, the Federal Court of
Appeal in Hutchison v Canada (Minister of the Environment), 2003 FCA 133
at paras 49-50, made it clear in reviewing the past jurisprudence that
[t]here is nothing in any of these
cases which would support the proposition that every exchange between an
investigator and an interested party must be disclosed to the other party. The
right to know the case to be met and to respond to it arises in connection with
material which will be put before the decision maker, not with respect to
material which passes through an investigator's hands in the course of the
investigation.
To the extent that the investigation report
discloses information contained in a letter or document, the applicant amply
exercised her right of response. To the extent that information in a letter or
document was not contained in the investigation report, and was not otherwise
before the Commission, the right to respond did not arise.
[59] In the same vein, the Federal
Court of Appeal in Gardner v Canada (AG), 2005 FCA 284 at paragraph 18,
indicated:
In any event, the Commission was not
obliged to produce the new evidence to Ms. Gardner simply because it was never
put to the Commission itself. What Ms. Gardner was owed and that which she was
accorded, was the opportunity to comment on [the] Treasury Board’s submissions
which as it turned out, contained the substance of the information in the new
evidence.
[60] Finally, administrative tribunals
such as the Commission are presumed to have considered all the evidence
submitted and are not required to expressly refer to all pieces of evidence
upon which their reasons were founded. That said, the more important the
evidence that is not specifically mentioned in the tribunal's reasons, the more
willing a court may be to infer that the tribunal made an erroneous finding of
fact without regard to the evidence (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425, 157 FTR 35, at paras
14-17).
[50]
Ms. Klimkowski was given the opportunity to respond
to the CPR’s submissions as they were summarised and set out in the Section
40/41 Report and placed before the Commissioner for a decision. In the
circumstances the investigator was under no obligation to disclose the
submissions to Ms. Klimkowski.
[51]
Similarly the CPR reply to Ms. Klimkowski’s
response to the Section 40/41 Report did not raise issues or set out
information not already reflected in the record placed before the Commissioner.
As such there was no obligation to provide Ms. Klimkowski with the opportunity to
provide a sur-reply.
[52]
In reaching this conclusion I also note the
respondent’s arguments to the effect that even if there was a flaw in the
procedure, that flaw is insufficient to find a reviewable error where an
applicant is unable to demonstrate prejudice or an impact on the decision or
outcome (Maritime Broadcasting System Ltd v Canadian Media Guild, 2014
FCA 59 at paras 70, 74; Uniboard Surfaces v Kronotex Fussboden GmbH and Co,
2006 FCA 398 at para 24; Canadian Union of Public Employees (Airline
Division) v Air Canada, 2013 FC 184 at para 120). Ms. Klimkowski’s counsel
had taken the position with the investigator that procedural fairness required
the right to a sur-reply. A sur-reply was provided but was not placed before
the Commissioner. However Ms. Klimkowski has not argued that the sur-reply contained
new information that would have been relevant to the decision and review of the
sur-reply provided does not disclose any such information.
[53]
Finally, in response to Ms. Klimkowski’s argument
that the Commission’s reasons were inadequate I would note that that the
adequacy of reasons is not a stand-alone basis for quashing a decision. Where
reasons are provided there is no breach of procedural fairness, rather the
reasons are to be assessed within any reasonableness analysis (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paras 14 and 22).
[54]
The Commission did not act unfairly in assessing
the Complaint or in concluding it would not deal with the Complaint. There was
no breach of procedural fairness.
B.
Was the decision reasonable?
(1)
Did the Commission err by finding the Complaint
to be “vexatious” within the meaning of paragraph 41(1)(d) of the CHRA?
[55]
Ms. Klimkowski argues that the determination
that the Complaint was vexatious on the basis that “the
essence of the human rights complaint was dealt with in the grievance brought
forward to the arbitrator” was unreasonable. She argues that the grievance
arbitration did not deal with any of the human rights ramifications of the CPR
termination decision. Specifically she submits the grievance arbitration did
not address her allegations of personal and systemic harassment and
discrimination on the basis of sex and disability. She argues that in the
circumstances her only available recourse is the Complaint to the CHRC.
[56]
The Section 40/41 Report cites the jurisprudence
relevant to an assessment of whether a complaint might be vexatious on the
basis that the complaint has been addressed in the grievance process. The Section
40/41 Report notes that the Commission cannot decline to deal with a complaint
pursuant to paragraph 41(1)(d) of the CHRA simply on the basis that another
process has dealt with the matter. Instead the Commission must review the evidence
and examine the decision arising out of the prior process in reaching its own decision
on the application of section 41(1)(d) (Boudreault v Canada (Attorney
General), [1995] FCJ No 1055 at paras 15-17, 99 FTR 293 (TD), Canada
Post Corp v Barrette, [2000] FCJ No 539 at paras 27-28, 27 Admin LR (3d) 68
(CA)).
[57]
As discussed earlier in this decision, the
Section 40/41 Report then engaged with the Supreme Court of Canada’s decisions
in Figliola and Penner. The Section 40/41 Report recognized that
the Commission has a duty to respect the finality of decisions arising out of
prior processes where the issues are essentially the same but must also
consider the fairness of the prior process (Figliola at paras 36-37).
[58]
In Figliola at paragraph 37, the majority
of the Supreme Court of Canada concluded that a decision making body should ask
three questions in determining whether the substance of a complaint has been “appropriately dealt with”:
a)
Whether there was concurrent jurisdiction to
decide human rights issues;
b)
Whether the previously decided legal issue was
essentially the same as what is being complained of to the Tribunal; and
c)
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.
[59]
Ms. Klimkowski appears to rely on the absence of
any specific reference in the arbitration decision to the human rights
allegations advanced on her behalf by the Union to argue the determination that
the Complaint is vexatious under paragraph 41(1)(d) of the CHRA is unreasonable.
However, the allegations of harassment and discrimination based on disability
were advanced and responded to by the parties in their submissions to the
arbitrator. In reviewing the arbitration decision as a whole and considering
the arbitrator’s conclusion that the termination for cause was justified one
cannot reasonably conclude that the arbitrator was not satisfied that the CHRA
related allegations were unfounded. The absence of an express consideration of
these allegations in the arbitration decision does not, in my opinion, detract
from the reasonableness of the Section 40/41 Report conclusion that the essence
of the Complaint had been addressed by the arbitrator.
[60]
In the substance of the reasons, the Section
40/41 Report reasonably concluded based on the evidence, including a
consideration of Ms. Klimkowski’s Complaint and the submissions made, that the
three questions identified in Figliola were to be answered in the
affirmative.
[61]
However, regarding the third question from Figliola,
the Section 40/41 Report did not confine its analysis to Figliola when
addressing the question and concept of fairness. The Section 40/41 Report also
addressed the Penner test where the majority of the Supreme Court of
Canada adopted an issue estoppel analytical framework. In so doing in that case,
the majority of the Supreme Court of Canada at paragraph 29 recognized that
doctrine “balances judicial finality and economy and
other considerations of fairness to the parties.” In discussing this
balance the majority first acknowledged the importance of finality: “a party is expected to raise all appropriate issues and is
not permitted multiple opportunities to obtain a favourable judicial
determination. Finality is important both to the parties and to the judicial
system” (Penner at para 42). The majority then discussed the
issue of fairness and required a decision maker to address unfairness in a
prior proceeding and where a prior proceeding is found to be fair to consider
if it would be unfair to rely on the results of the first proceeding to
preclude the second proceeding from occurring (Carroll at para 118,
citing Penner at paras 39-48).
[62]
Therefore, in considering fairness the CHRC
noted it should also consider whether it would be unfair to not deal with the Complaint
based on significant differences between the two proceedings, which includes a
consideration of the purpose of the prior process and the CHRA complaint
process (Penner at paras 42, 45). The Section 40/41 Report then sets out
a detailed list of factors that the Commission may consider under paragraph 41(1)(d)
and proceeds to address those factors.
[63]
A review of the Section 40/41 Report
demonstrates the CHRC conducted a detailed and thorough consideration of those
factors in determining whether or not to deal with the Complaint under paragraph
41(1)(d). That analysis acknowledged and addressed the allegations of personal
and systemic discrimination on the basis of sex and disability in the Complaint
but concluded that the essence of those allegations were dealt with in the
grievance brought before the arbitrator. The CHRC also considered the role and
jurisdiction of the arbitrator as an independent and neutral third party and
found there was not a significant difference between the arbitration process
and the CHRC’s complaint process. Moreover, the CHRC addressed and found the
arbitration process to be fair and noted Ms. Klimkowski’s concerns with the
adequacy of Union representation and her failure to pursue remedies available
to address these concerns, and found those concerns did not render the
arbitration process procedurally unfair. Rather Ms. Klimkowski’s concern with
her Union representation was relevant to the duty of fair representation, of
which Ms. Klimkowski did not bring a complaint. Finally the Section 40/41
Report identified and addressed Ms. Klimkowski’s assertions that the
arbitration had failed to address her human rights related allegations and
found Ms. Klimkowski had the opportunity to raise all human right allegations
in the arbitration process that she raised in the Complaint. As the Commission
noted, “Justice does not require that the Commission
deal with the complaint even though the complainant is dissatisfied with the
outcome. The Commission is not an appeal mechanism for arbitration decisions
and the adjudication of the complaint will not advance the purpose of the act”.
[64]
In response to those conclusions, Ms. Klimkowski
relies upon Carroll to advance her argument that the decision was
unreasonable, but as I noted above Carroll is distinguishable. In this
case, unlike Carroll, Ms. Klimkowski’s allegations of systemic and
personal discrimination were neither ignored nor misapprehended. These
arguments were acknowledged and addressed in the Section 40/41 Report. Carroll
is also distinguishable in relation to the duty to respect the finality of
decisions arising out of prior processes. In Carroll the complainant’s
union had refused to refer the grievance to arbitration (Carroll at para
15). As such there had been no independent hearing or decision from an
impartial decision-maker in a prior process. It is on this basis the Justice
Mosely concluded that “…there is no issue of territorial
respect between competing tribunals as in Figliola…” (Carroll at
para 124). Moreover, unlike Carroll where Justice Mosley found at
paragraph 127 that “there is no evidence that the
Commission ever gave thought to exercising that discretion. It did not grapple
with the issue of whether dismissing the complaint might be unfair to Ms.
Carroll”, the opposite occurred in this case. The Section 40/41 Report
grappled with the issue of whether dismissing the Complaint might be unfair to
Ms. Klimkowski, but determined based on the record that there is no information
suggesting such unfairness would occur. This was reasonable.
[65]
Hence, while I note that the respondent argues that
the issue estoppel doctrine and in turn the Penner test are unique to
the civil law context and inapplicable to the administrative law context where
the abuse of process doctrine applies, I need not address this issue.
[66]
I am satisfied that the Section 40/41 Report addressed
and reasonably concluded that the arbitration process was procedurally fair,
and that no unfairness arose out of relying on that proceeding to not deal with
the Complaint under the CHRA process. In reaching this conclusion the Section
40/41 Report noted the absence of significant differences between the arbitration
and CHRA complaint processes and that the arbitration process was “fully capable of dealing with the complainant’s human rights
issues and of providing Ms. Klimkowski with redress for the alleged human rights
violations”. The Commissioner did not, as Ms. Klimkowski argues, blindly
adopt those reasons but instead engaged in an inquiry as to whether it should
exercise its discretion to deal with the Complaint.
[67]
In summary, it was open for the Commission in
performing its screening function, to conclude that the essence of Complaint
was already dealt with in the grievance arbitration process, a process under
which Ms. Klimkowski had the opportunity to raise all relevant human rights
issues, including those pertaining to sex and that no unfairness would arise in
refusing to deal with the Complaint. Therefore, I am satisfied that the
Commission’s determination that the Complaint was vexatious, within the meaning
of that term under paragraph 41(1)(d) of the CHRA reflects the elements of
justification, transparency and intelligibility and falls within the range of
possible, acceptable outcomes defensible in respect of the facts and law (Dunsmuir
at para 47).
(2)
Did the Commission err by finding the complaint
to be “frivolous” within the meaning of paragraph
41(1)(d) of the CHRA?
[68]
In light of my finding that the Commission
reasonably concluded the Complaint was vexatious it is unnecessary to address
the reasonableness of the finding that the allegation of adverse differential
treatment on the basis of sex was frivolous within the meaning of paragraph
41(1)(d) of the CHRA. I will however note that I am similarly unpersuaded that
this determination was unreasonable.
VII.
Conclusion
[69]
The application is dismissed.
[70]
With respect to the question of costs, the
parties have agreed that that the amount of $10,477.86 inclusive of
disbursements and HST would be appropriate. I am satisfied that this is a
reasonable award in light of the complexity of the matters raised.
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