Docket: T-1093-15
Citation:
2017 FC 446
Ottawa, Ontario, May 4, 2017
PRESENT: The
Honourable Madam Justice McVeigh
|
BETWEEN:
|
|
OURANIA
GEORGOULAS
|
|
Applicant
|
|
and
|
|
ATTORNEY GENERAL
OF CANADA (AGC) CANADIAN ASSOCIATION OF PROFESSIONAL EMPLOYEES (CAPE)
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
Ourania Georgoulas [the Applicant] asks this
Court to judicially review a Canadian Human Rights Commission [CHRC] decision
dated May 20, 2015, which screened out her complaint. The CHRC decided that file
#20140564 should not proceed because the Applicant did not use the Public
Service Labour Relations Act, SC 2003, c 22, s 2 [PSLRA] for her labour
complaint and it was plain and obvious that the claim would not succeed (ss.
41(b) and (d), Canadian Human Rights Act, RSC 1985, c H-6 [the
Act]).
II.
Background
[2]
The Applicant has her civil and common law
degrees and was at all times and still is a member in good standing with the
Barreau du Québec and the Law Society of Upper Canada. She chose to represent
herself in this matter.
[3]
The Applicant has a number of matters before the
CHRC, the Federal Court, and the Federal Court of Appeal, making it very
difficult for the Applicant and the Respondents to move on. In this file the
Attorney General did not participate in the hearing or file any materials. Understandably,
the Applicant’s life revolves around these matters and their conclusion would
enable the Applicant to engage in something other than litigation.
[4]
I am granting this application solely on the
basis of a breach of procedural fairness and not for the myriad of other issues
that go to the merits and reasonableness of the decision. For that reason, I
will only briefly address issues other than procedural fairness.
[5]
The Applicant was employed as a Policy Analyst with
Transport Canada [the employer or TC], Aviation Security Directorate, beginning
November 2007 until 2016. She was on long term disability from December 2011 until
September of 2014 after which she returned to work for 18 months. The Canadian Association
of Professional Employees [CAPE] was at all material times the Applicant’s certified
bargaining agent.
[6]
Throughout 2013 and much of 2014, the Applicant,
Transport Canada and CAPE had numerous discussions about how to accommodate her
gradual return to work. TC requested she complete a Health Canada assessment to
identify her functional limitations in order to accommodate her return to work.
The Applicant objected to this assessment as she had already submitted her own
doctor’s medical report and accommodation plan. CAPE advised the Applicant to
complete the Health Canada assessment.
[7]
The Applicant’s complaint against both TC and
CAPE began with the CHRC as file #20140234. The CHRC later separated that
complaint into two files, one remaining #20140234 (against TC), and the other
given file #20140564 (against CAPE). The file ending in 234 is being judicially
reviewed in T-1094-15, and a previous complaint file (#20111316) against TC is
also the subject of a judicial review. The file ending in 564 against CAPE is
the subject of this judicial review.
[8]
On February 21, 2014, the Applicant approached
the CHRC with complaints against TC and CAPE. An Early Resolution Analyst at
the CHRC informed the Applicant that she could not file against CAPE. The
analyst suggested that the Applicant file a complaint with the provincial
authorities. Instead after an extension of time to file was granted, the
Applicant included her complaint against CAPE in the complaint kit against her
employer- TC on April 11, 2014.
[9]
The Applicant was dissatisfied with filing one
complaint against both her employer and CAPE as she felt she had two human
rights complaints against two different parties with different incidents that
supported the two separate claims. Her dissatisfaction was compounded since one
complaint kit contains a maximum three page limit to describe the incidents against
both parties. According to the Applicant, having only three pages for two
parties prevented her from properly filing her complaint. She further alleges
that two separate complaint kits with three pages of space each would have
adequately allowed her to describe the incidents ascribed to each party.
[10]
At some point after filing, the CHRC unilaterally
separated the Applicant’s complaint into two files, one against TC, and the
other against CAPE. The letter to CAPE from CHRC dated June 12, 2014, has the
file number 20140564 on it. Attached to the letter is the copied complaint form
with the last three numbers crossed out and 564 hand-written in. However, with
the creation of two files, the Applicant was still restricted to the three page
submission in her original complaint kit. The Applicant’s request to amend her
complaint to reflect her claim against each party was not granted.
[11]
On July 4, 2014, the CHRC informed the parties
that it would be preparing a section 40/41 report to determine whether the
Applicant’s complaint should be addressed. In a July 14, 2014 letter, the CHRC
requested submissions on the applicability of section 41 of the Act. The
Applicant filed a position statement in response on September 19, 2014.
[12]
On January 30, 2015, the section 40/41 report
was completed. It concluded that since the limitation period under the PSLRA
had passed, the CHRC should address her complaint. However, it also concluded
that it was “plain and obvious that the complaint
cannot succeed.” It found the Applicant’s complaint was frivolous within
the meaning of paragraph 41(1)(d) of the Act and recommended that the CHRC dismiss
it.
[13]
On March 26 and April 23, 2015, the Applicant
made further submissions to the CHRC regarding the section 40/41 report and
submissions from CAPE. In a letter dated May 20, 2015, the CHRC dismissed the
Applicant’s complaint against CAPE.
[14]
In its decision, the CHRC refused to deal with the
Applicant’s complaint under paragraphs 41(1)(b) and (d) of the Act. The CHRC
adopted the reasons from the section 40/41 report stating that the allegations were
frivolous within the meaning of the Act. However, it disagreed with the report
regarding adequate alternative remedy preferring submissions made by CAPE. The CHRC
agreed that the Public Service Labour Relations Board [PSLRB] was the
appropriate forum for the Applicant’s complaint. CHRC found contrary to the
report that the expiry of the limitation period for her complaint under that
Act did not alter its appropriateness.
III.
Issues
[15]
The Applicant raised the following issues in
this application:
A. Did the CHRC err in dismissing her complaint?
B.
Did the CHRC err by lacking
neutrality/impartiality?
C.
Did the CHRC err by refusing to exercise its
jurisdiction regarding s. 41(1)(d) of the Act?
D. Did the CHRC err in refusing to amend the Applicant’s complaint to
include retaliation pursuant to s. 14.1 of the Act?
[16]
The issues are better stated as follows:
A. Was the Applicant deprived of a fair opportunity to present her case
to the CHRC; and
B.
Was the CHRC decision reasonable?
IV.
Standard of Review
[17]
The appropriate standard of review is
reasonableness for an error of fact or error of fact and law (Kwon v Federal
Express Canada Ltd, 2014 FC 268 at para 12; Ayangma v Canada (Attorney
General), 2012 FCA 213 at para 56). A decision by the CHRC not to deal with
a complaint under subsection 41(1) of the Act is discretionary and entitled to
deference (Zulkoskey v Canada (Employment and Social Development), 2015
FC 1196 at paras 24-27 [Zulkoskey]). The screening role of the CHRC to
not hear the merits of a complaint should be accorded deference (O’Grady v
Bell Canada, 2012 FC 1448 at para 37 [O’Grady]).
[18]
Questions of procedural fairness will be reviewed
on the correctness standard (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43; Dunsmuir v New Brunswick, 2008 SCC 9 at para 50 [Dunsmuir]).
V.
Analysis
A.
Affidavit Evidence
[19]
The Respondent CAPE asked that the Applicant’s
affidavits sworn June 30, August 5 (the Applicant uses the 4th),
2015, as well as March 31, 2016 be struck, as they contain legal argument and
opinion. In addition, the Respondent alleges that the affidavits contain “new information” that was not before the decision
maker including events that occurred after the decision.
[20]
The Applicant indicated that the affidavits demonstrate
a breach of procedural fairness through interactions she had with CHRC staff
which fit within the exceptions to Rule 81 of the Federal Courts Rules,
SOR/98-106. The Applicant does not agree that the affidavits contain argument,
opinion or legal conclusions, saying instead that they “contain
information submitted to the commission throughout the process.” The
Respondents counters that the interactions with staff were administrative in
nature and did not involve the decision maker.
[21]
At the start of the hearing, I confirmed that I
would be making my decision based on the material that was before the decision
maker and that I am only judicially reviewing the decision dated May 20, 2015. Specific
affidavit material that may breach procedural fairness will be consider on an
ad hoc basis (Association of Universities and Colleges of Canada v Canadian
Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 16-17).
[22]
Any opinion or argument contained in the
affidavits noted above is given little weight pursuant to Rule 81. The matter
will proceed without any affidavits being struck.
B.
The Law
[23]
CAPE points out that where the CHRC adopts the
conclusions in a section 40/41 report, that report constitutes part of their
reasons (Carroll v Canada (Attorney General), 2015 FC 287 at para 28).
The test for determining whether a complaint is frivolous within the meaning of
the Act is “whether, based upon the evidence, it appears
to be plain and obvious that the complaint cannot succeed” (Hérold v
Canada (Revenue Agency), 2011 FC 544 at para 35). Although this threshold
is low, “there is a burden on a complainant to put
sufficient information or evidence forward to persuade the Commission that
there is a link between complained-of acts and a prohibited ground” (Hartjes
v Canada (Attorney General), 2008 FC 830 at para 23).
C.
Procedural Fairness
[24]
The question I must answer is whether the Applicant
was deprived of a fair opportunity to present her complaint to the CHRC?
[25]
The Applicant argues that limiting her
submissions against both parties to three pages deprived her of the ability to
set out the facts surrounding each complaint. At the hearing she said this
prevented her from discussing the reality of her claim since she could only
devote eight paragraphs towards CAPE. Despite having more information to
include in her complaint, she did her best to provide as much as possible to
the CHRC. She went on to say that her rights were infringed by not being allowed
to present all of the facts and arguments in each file.
[26]
There is no doubt that the CHRC is master of
their own procedure and that a limit of three pages for a complaint is
reasonable. There is a degree of tension implicit when the fairness of an
agency's procedure is reviewed by the courts on a standard of correctness and
yet the decision maker has discretion over their own procedure (Re:Sound v
Fitness Industry Council of Canada, 2014 FCA 48 at para 39 [Re:Sound]).
[27]
In their screening role, the CHRC acts as a
gatekeeper of whether matters should proceed. For this reason they do not hear a
complaint in its entirety as it would otherwise be redundant. In their
screening capacity they have determined that three pages is the maximum allowable
submission. This is the same for every complainant, seemingly without
exception.
[28]
There is nothing procedurally unfair or
unreasonable with how the CHRC requires complaint kits to be completed including
page limits and other formatting requirements. The procedural fairness owed by
the CHRC was canvased recently by Mr. Justice Manson in Zulkoskey, above,
where he applied the factors from Baker v Canada (Citizenship and
Immigration), [1992] 2 S.C.R. 817. Mr. Justice Manson noted at paragraph 41
that the Governor in Council had not passed regulations for a process to follow
in the screening process and that “procedural choices
at this stage should therefore be afforded deference, so long as they comply
with the duty of fairness.” In the end, he concluded that the procedural
fairness owed under paragraph 41(1)(d) is at the lower end of the spectrum. However,
as will be seen, being entitled to fairness at the low end of the spectrum does
not sanction a decision that, when considered in its factual context, is not
essentially fair.
[29]
The general principles regarding the content of
the duty of fairness are set out by the Federal Court of Appeal in Re:Sound,
above, at paragraph 54:
The ultimate question for a reviewing court
in every case is whether, in all the circumstances (including respect for
administrative procedural choices), the tribunal’s decision-making procedure
was essentially fair. This involves a contextual and fact-specific inquiry.
[30]
In my view, the CHRC breached procedural
fairness in this case. The Applicant wanted to file two separate complaints and
requested two kits and was only allowed one kit to file against both CAPE and
TC. In some cases that would not be unreasonable especially if the allegations
against the parties were the same. But on these facts the Applicant’s claims
were not identical and she could not express her claims against her employer and
her union in the one complaint kit. The CHRC ultimately agreed with the
Applicant, separating her complaints, but did not allow her to complete a complaint
kit for each Respondent.
[31]
The Applicant argues that her complaint against
CAPE was dismissed precisely on the grounds she was unable to put before the
CHRC. To support this position she presented evidence to this Court that she
says would have been presented in a complaint kit had she been given a fair
opportunity to do so. I am not commenting on whether this information would
make a difference to the Commission’s decision. It is only raised to address
the issue that the Applicant was prevented from fairly presenting her complaint
solely against CAPE.
[32]
I considered whether on an objective basis a
person could express their complaints against two parties in the three pages allocated.
Certainly it could be done and again there is nothing wrong with the CHRC restricting
submissions to three pages. However in this case, subjectively, this individual
needed three pages for each complaint in order to present her complaint.
[33]
It is a fundamental rule that justice must not
only be done, but it must be seen to be done (R v Sheppard, 2002 SCC 26
at para 15; Société des Acadiens v Association of Parents, [1986] 1 SCR
549 at para 153). The Applicant had already identified she needed accommodation
and she asked for a separate complaint kit from the outset and was told she
could not bring separate complaints. Given this unique circumstance, once the
CHRC unilaterally split her complaint into separate files, it should have
provided her with the opportunity to make adequate submissions on each and by
not doing so breached procedural fairness.
D.
Administrative Interactions - Email
[34]
The Applicant raises further procedural fairness
concerns regarding her administrative interactions with CHRC staff. However,
none of these interactions were with the decision maker involved with her
complaint. As addressed above, the procedural fairness to be afforded in this
circumstance falls on the lower end of the spectrum. It requires that a section
40/41 report be neutral and thorough, that the Applicant be provided with a
copy of it, and that she be given ample opportunity to make submissions (Zulkoskey,
at paras 42-45). All of these occurred in this case including multiple time
extensions for the Applicant to make submissions.
[35]
I do not condone any of the alleged rude
behaviour between the Applicant and members of the CHRC staff. I do not see on
the paper record before me that CHRC staffs were discourteous towards the
Applicant but I do acknowledge that I do not have transcripts of the
interactions. Despite the Applicant’s allegations of mistreatment, CHRC granted
her numerous extensions of time and continued to be professional and
cooperative in all the written materials in the record. Some of the
interactions between the parties may have caused confusion and some
misunderstandings. However, I find the actions taken by both parties were meant
to facilitate this matter moving forward.
[36]
I would strongly caution both parties to keep
civility in mind as this matter is re-determined by a different decision maker.
E.
Reasonableness
[37]
Though I am granting the application due to a
breach of procedural fairness I note that the decision was reasonable given the
material that was before the decision maker. The Applicant submits a litany of
arguments that the decision is not reasonable. Those arguments are found in the
Applicant’s Memorandum of Fact and Law starting at page 12 and continuing to
page 29. In summary:
a)
The Applicant argues that the CHRC and CAPE
harassed, discriminated, and retaliated against her in the context of their
duty to accommodate a disabled employee returning to work. In particular, by
condoning her employer’s behaviour, CAPE participated in it. Despite her many
requests, the CHRC refused to process her complaint against CAPE contrary to
the Act and their internal procedures manual.
b)
The Applicant submits that she provided
sufficient information to establish discrimination yet the CHRC failed to
conduct a proper analysis. CAPE’s responsibilities, as per Central Okanagan
School District No 23 v Renaud, [1992] 2 S.C.R. 970 [Renaud], do not
stop when accommodation is initiated or provided but must include ongoing
monitoring which it failed to do.
c)
The Applicant argues that CAPE’s objections to
her complaint changed from paragraphs 41(1)(a), (c), and (d) to 41(1)(b) and
(d) without her notification.
d)
When the Applicant asked the CHRC to add the
grounds of retaliation to her complaint it was a request that the CHRC properly
conduct its analysis and not merely an amendment. The Applicant argues that a
broad interpretation of section 14.1 of the Act is appropriate and that CAPE’s
approach is too restrictive. Furthermore, the CHRC erred because it refused to
consider her complaint on the ground of retaliation. She feared that more harm
would come to her but TC and CAPE did not stop.
e)
A CHRC employee left a discriminatory,
threatening, and retaliatory voice message for the Applicant on February 18,
2015 forbidding her from contacting the CHRC via e-mail. The CHRC has
subsequently become an interested party in these proceedings and therefore
breached their neutrality/impartiality.
f)
The Applicant submitted that the CHRC rejected
CAPE’s argument that this matter falls under the jurisdiction of the PSLRB.
CAPE did not change her union representative despite her requests to do so and
never advised her of processes available under the PSLRB. The CHRC’s analysis
that it had jurisdiction under paragraph 41(1)(b) should have been kept as it
never accepted that this was a matter that falls under the PLSRA. To date CAPE
has refused to file or exercise any remedy on her behalf. The CHRC adopted
CAPE’s submissions in their decision contrary to their duty of fair
representation and which is discriminatory. CAPE never provided the Applicant
with the right information regarding remedies, filings or information.
According to CAPE’s Protocol 1 Redress, Representation, it does not provide
representation in human rights cases like this one which is not in conformity
with their obligations under section 16 of the Collective Agreement on
discrimination.
[38]
In response CAPE submitted that the duty to
accommodate is a three-party process, requiring the employer, employee and
union to work together. Although the Applicant disagrees with her union’s
representation, it does not constitute discrimination and the CHRC’s decision
to dismiss was reasonable. CAPE goes on to suggest that the Applicant’s true
issue is that she feels they represented her in a manner that is arbitrary,
discriminatory or in bad faith. This falls under section 187 of the PSLRA,
which includes dissatisfaction and disagreement with advice and representation
provided by the union. Despite the 90 day limitation period, the PSLRA is the
appropriate procedure.
[39]
The CHRC did not follow the section 40/41 report
which recommended allowing the complaint because it had exceeded the limitation
period under the PSLRA. It concluded that paragraph 41(1)(b) of the Act does
not have a temporal aspect.
[40]
On this point Justice Stratas noted in Bergeron
v Canada (Attorney General), 2015 FCA 160, at paragraph 45 that “the Commission gets ‘great latitude’ when courts review
decisions such as this.” Justice Stratas went on to say at paragraph 47
that “[t]he concept of adequacy is highly judgmental
and fact-based, informed in part by the policy that the Commission should not
devote scarce resources to matters that have been in substance, addressed
elsewhere or that could have been addressed elsewhere. On this last-mentioned
point, a failure to pursue adequate redress elsewhere or to pursue that
adequate redress to its full extent can be invoked under paragraph 41(1)(d).”
[41]
I find that it was open to the CHRC to adopt or
reject portions of the section 40/41 report as it saw fit. Furthermore, since
the Applicant’s position statement was considered in the section 40/41 report,
it need not have been considered by the CHRC separately. The position statement
spoke to the merits of the complaint and was not relevant to whether an
alternative process was available. Even if it is found that it was unreasonable
for the CHRC to not consider the position statement with respect to the
frivolous nature of her claim, the decision can still stand on the basis of
adequate alternative.
[42]
Furthermore, the CHRC correctly adopted the
appropriate analysis as presented in Renaud, above, that a “union may be liable for failure to accommodate…if the union
impedes the reasonable efforts of an employer to accommodate.” Contrary
to impeding accommodation efforts, the CHRC concluded that CAPE was “cooperating with the employer in its efforts to provide the
complainant with reasonable accommodation upon her return to work.”
[43]
The CHRC’s gatekeeper role is an important one
conferred by Parliament. I agree with CAPE that in its screening role the
decision was reasonable given that it is not to decide the merits of the
complaint (O’Grady, above).
[44]
In some circumstances it would be possible to
dismiss the application as the breach of procedural fairness would not have
affected the decision. Respectfully, this is not such a case. The Applicant is
a self-represented individual (though legally trained) and presented as being either:
not concise or having a lot of information to convey. In any event, the breach
of procedural fairness did not allow the Applicant to present the case she had
to the CHRC and as a result I will grant the application. The matter is to be
re-determined by a different decision maker after allowing the Applicant to submit
a three page submission as directed in the complaint kit.
F.
Costs
[45]
The Applicant sought costs as did the Respondents.
I will not grant costs in this application. Though the Applicant was successful
she represented herself and was only successful on a very narrow point that was
clearly not within CAPE’s control.
Email this Content