Docket: T-690-15
Citation:
2016 FC 1346
Toronto, Ontario, December 6, 2016
PRESENT: The Honourable Mr. Justice Diner
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BETWEEN:
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YVONNE SOULLIÈRE
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Applicant
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and
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CANADIAN BLOOD
SERVICES
HEALTH CANADA
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Respondents
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and
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CANADIAN
HUMAN RIGHTS COMMISSION
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Intervener
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ORDER AND REASONS
I.
Introduction
[1]
The Applicant brings this motion pursuant to
Rules 8, 59, and 369 of the Federal Courts Rules, asking for the
following relief:
i.
An order striking: paragraphs 3 to 6 and 8 of
the Canadian Blood Services [CBS or the Respondent] Notice of Appearance;
paragraphs 4, 5 and 80 to 116 of the CBS Memorandum of Fact and Law [CBS
Factum]; paragraphs 3, 5 to 15, and 30 of the CBS Response to the Memorandum of
Fact and Law of the Intervener, the Canadian Human Rights Commission (“Commission”) [CBS Response].
- In the
alternative, a direction from the Court on how to object and if necessary
reply to the additional grounds raised by CBS in the paragraphs outlined
in (i).
[2]
I rendered a decision from the Bench denying the
relief requested in (i), but providing a direction requested in (ii), with the
consent of the Respondent, to provide a factum of no longer than 12 pages by
February 28, 2017. In doing so, I promised brief reasons that would follow,
and those are contained below.
II.
Background
[3]
Yvonne Soullière [the Applicant] brought her
disabled daughter, Yanhong Dewan, to donate blood on February 2, 2012. The
blood clinic which she attended in La Salle, Ontario was operated by CBS.
[4]
The Applicant requested accommodation for her
daughter’s disability in the form of translating the Donor Health Questionnaire
[DHAQ] into language familiar to her daughter. CBS declined to allow Ms.
Soullière or anyone else to translate the DHAQ into accessible language for Ms.
Dewan.
[5]
Ms. Soullière filed the underlying complaint
with the Commission against CBS [the complaint] on December 7, 2012 (Commission
File No 20120986), as well as against Health Canada on the same date
(Commission File No 20121051), on the basis of discrimination pursuant to the Canadian
Human Rights Act, RSC, 1985, c H-6 [the Act].
[6]
On February 8, 2013, CBS objected to the
investigation of the complaint pursuant to sections 40/41 of the Act. On
December 18, 2013 the Commission decided to deal with the complaint finding
that CBS provides a service when screening potential blood donors. It referred
the complaint to an Investigation Officer. On December 29, 2014, Investigation
Reports were completed with respect to both the CBS and Health Canada
complaints and delivered to the respective parties. Submissions in response to
the Investigation Reports were made. The Respondent CBS continued to advocate
that donating blood is not a “service” within
the meaning of section 5 of the Act.
[7]
The Commission dismissed the allegations of
discrimination against CBS in a letter dated March 26, 2015. It decided,
pursuant to subparagraph 44(3)(b)(i) of the Act, to dismiss the complaint
because “having regard to all the circumstances of the
complaint, further inquiry is not warranted”. In short, despite
accepting that blood screening is a service, the officer found no basis for a
further investigation of discrimination.
[8]
Since the Commission provided no reasons, the
parties agree that the report of the investigative officer constitutes the
Commission’s reasons: Sketchley v Canada (Attorney General), 2005 FCA
404 at paras 37-38. The complainant (now the Applicant) filed two judicial
reviews, which are set to be heard consecutively in Toronto on May 15-16, 2017.
(The motion which forms the subject of this decision only concerns the
Respondent CBS.)
[9]
As noted above, the investigative officer
accepted that the blood screening process constitutes a “service” as defined under the Act. This had been a
major issue between the parties throughout the course of the investigation.
Before this Court, the Respondent continues to argue that the complaint should
be dismissed not only on the basis of subparagraph 44(3)(b)(i), as the
Commission decided – but also on the basis of subparagraph 44(3)(b)(ii) and
paragraph 41(1)(c). In other words, the Commission could – and should – have
also justified its decision to dismiss the complaint on the basis that the
blood donor screening process does not constitute a service.
III.
Issues and Analysis
[10]
The Applicant asks that the Court strike out all
arguments made by CBS alleging that blood screening is not a service. In her
written submissions, the Applicant argued that the Commission made three
distinct decisions: (1) whether there was support for the allegations of
discrimination in the provision of a service; (2) whether the policy, practice,
rule or standard was bona fide justified; and (3) whether there was a
failure to accommodate.
[11]
The Applicant therefore characterizes the
Respondent as being “partially successful”, in
that the Respondent only succeeded on the issue of non-discrimination under
subparagraph 44(3)(b)(i) of the Act, but was unsuccessful with respect to its
arguments pursuant to paragraph 41(1)(c), regarding the “service” issue. The Respondent, according to the
Applicant, had an obligation to bring its own judicial review to challenge that
unsuccessful component of the case. The Applicant relies on several cases in
support of its position, including Systèmes Equinox Inc v Canada (Public
Works and Government Services), 2012 FCA 51; Larsson v Canada, [1997]
FCJ No 1044 (Fed CA); and Go v Canada (Attorney General), 2004 FC 471.
[12]
The Applicant has not disputed that a party may
not judicially review a decision in its favour. However, the Applicant seeks to
avoid this issue by characterizing the decision under review as actually being
a number of separate decisions. According to the Applicant, CBS should have
separately judicially reviewed the unfavourable decision regarding the “service” issue, and cannot do so in this proceeding.
Therefore, this motion turns on whether the below decision was in fact a single
determination in which the Respondent was wholly successful.
[13]
As indicated to the parties, the Court agrees
with the Respondent’s position: ultimately, the Commission made only one
decision – there should be no further inquiry under the Act. The investigative
officer’s determinations formed the reasons for that decision. In turn, the
officer’s various reasons were ultimately components of the Commission’s
reasons not to proceed with a full inquiry. The “services”
question goes only to one of the potential justifications for those reasons.
It is not an additional decision in and of itself.
[14]
Furthermore, the Notice of Application filed by
the Applicant refers to “the Decision” of the
Commission, not “the Decisions”.
[15]
I also disagree with the Applicant’s argument
that the Respondent was only “partially successful”.
The Respondent was wholly successful in the decision it advocated for. It was
partially successful only in the legal reasoning on which the Commission’s said
disposition was founded, in that while the Commission found no basis for
further investigation into alleged discrimination, it nonetheless accepted that
screening donors constituted a service under the Act. While not all of the
Respondent’s alternative arguments for dismissing the complaint were accepted,
one was, and that was sufficient to achieve a favourable determination to the
Respondent.
[16]
Given my findings on the nature of the decision,
the cases raised by the Applicant differ in their facts, as they all involved
at least two decisions, where the rulings were favourable and unfavourable in
part to each of the litigants.
[17]
Contrary to the position of the Applicant, I
disagree that the Respondent should have brought forward its own judicial
review in this case. The case law is clear that successful parties have the
choice of awaiting a decision at the section 44 stage before challenging the
Commission: see Canada Post Corporation v Barrette, [2000] 4 FC 145 at
para 24; Mohawks of the Bay of Quinte v Canada (Attorney General), 2014
FC 527 at para 5; Canada (Attorney General) v Hotte, 2005 FC 246 at
paras 9-10, 15, 39.
[18]
Here, the Respondent had every right to await
the outcome of the section 44 decision, which was ultimately decided in its
favour. Having received that decision, the Respondent could not challenge it,
given the disposition in its favour. However, once challenged by the Applicant
through this judicial review, the Respondent had every right to challenge the underlying
reasons with which it took issue. As held by the Federal Court of Appeal in Canada
(Attorney General) v Dussault, 2003 FCA 5 at para 5:
A party that wins but does not necessarily
endorse the reasons given certainly has no interest in attacking the judgment,
whether by an appeal or by an application for judicial review. Technically, it
is the disposition that is attacked, not the reasons leading up to it. It is
equally certain, however, that if the adverse party attacks the judgment, the
party that won has the right, in its memorandum if it is an appeal or in its
record if it is an application for judicial review, to go after the reasons for
judgment that are under attack in order to improve them, if appropriate, or, as
in this case, to demonstrate their lack of merit and even to have the appeal or
application dismissed on grounds other than those adopted by the trial judge..
IV.
Costs
[19]
Having considered the submissions on costs from
both sides, no costs will be ordered, for all the reasons put forward by the
Applicant, including the Applicant’s financial position, her public interest motivation
and redress sought, along with the nature of her counsel as a not-for-profit
supporting the public interest, and the underlying legal issues raised.
V.
Direction on Reply Memorandum
[20]
The Applicant’s request for an opportunity to
respond on the issue of service (the alternate relief sought) is granted. The
Reply memorandum, due by February 28, 2017, upon the consent of the other
parties to the litigation, shall not exceed 12 pages in length.
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