Date: 20061114
Docket: T-707-06
Citation: 2006 FC 1374
OTTAWA, ONTARIO, November 14,
2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
JANICE
DOERR
Applicant
and
BELL CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Canadian Human
Rights Commission dated March 17, 2006, wherein the Applicant’s complaint
against the Respondent, Bell Canada, was dismissed. The Applicant, Janice
Doerr, asks that the decision be quashed and that the matter be directed to the
Canadian Human Rights Tribunal for an inquiry or, in the alternative, that the
matter be returned to the Commission to conduct a new investigation. For the
reasons that follow, I find that the application is dismissed, each party to
bear its own costs.
[2]
There
has been a lengthy, acrimonious history between the Applicant and Respondent.
To summarize:
1.
The
Applicant began employment with Bell
Canada in April, 1981, in a position
that required constant repetitive work at a computer keyboard.
2.
In the mid
1980’s, the Applicant was involved in a car accident causing soft tissue
injuries, which apparently contributed to her later difficulties. She
apparently suffers from what is described as bi-lateral tendonitis.
3.
In 1994,
upon receiving medical advice, the computer portion of the Applicant’s duties was
removed.
4.
In
1995-1996, Bell Canada downsized its operations and
required that the Applicant resume her duties with the computer. In 1997, the
Applicant worked only sporadically.
5.
Bell Canada terminated her employment in September,
1997, whereupon the Applicant instituted a grievance procedure. In February,
1999, an arbitrator made an award requiring that the Applicant be reinstated as
of September, 1997, with compensation. Bell Canada was directed to seek another suitable
position for the Applicant and to assign a different manager to her. The
arbitrator remained seized of the matter in respect of the finding of a
suitable different position.
6.
The
Applicant filed a complaint (the first complaint) with the Canadian Human
Rights Commission on March 19, 1999, alleging that Bell Canada failed to
provide a workplace free of harassment and terminated her employment because of
her disability. The complaint alleged improper conduct in the period from
April, 1997 to September 15, 1997. The complaint was filed more than one year
after the latter date, however the issue of timeliness did not arise in view of
the Commission’s disposition of the matter.
7.
On August
20, 1999, the Commission provided an Investigator’s Report and recommended that
the complaint not be dealt with pending final outcome of the arbitral process,
that is the process in which an award was made in February 1999, subject to
certain outstanding matters.
8.
Difficulties
between the parties continued. In November, 1999, the Applicant and Bell Canada executed handwritten Minutes of
Settlement stating, among other things, that:
“…the parties wish to resolve
the matters in dispute between them”
The Applicant was to return to
work in a position that would accommodate her disability. Any issue as to such
accommodation would be referred to the arbitrator who remained seized with the
matter for that purpose.
9.
The
Applicant returned to work in late November, 1999, but matters did not go
well. On May 23, 2002, Bell Canada again dismissed the
Applicant. A second grievance was filed and subsequently submitted to the same
arbitrator.
10.
On May 23,
2003, one year after her second termination, the Applicant filed a second
complaint with the Canadian Human Rights Commission. The allegations were
failure of Bell Canada to accommodate the Applicant’s
disability, failure to provide a harassment free workplace, termination by
reason of disability and retaliation.
11.
On August
12, 2003, the arbitrator made an award based on the issues as to whether Bell Canada met its obligation to
accommodate the Applicant and, if not, what was the appropriate remedy. The
arbitrator awarded compensation in lieu of reinstatement. The arbitrator
remained seized of an issue respecting efforts of the Applicant to mitigate her
damages, and in respect of implementation of the award. Bell Canada took the position that the August, 2003
award had dealt with the issues in the second complaint.
12.
On April
15, 2004, an Investigator made a Report to the Commission in respect of the second
complaint. The recommendation was that, pursuant to paragraph 44(3)(b) of the Canadian
Human Rights Act, R.S., 1985, c.H-6 s.44; 1998, c.9, s.24 , the Commission take
no further proceedings in the complaint. The parties were invited to make
submissions as to the Report. Bell Canada
did so endorsing the recommendation. The Applicant made submissions to the
effect that the arbitrator did not deal with all the issues raised in the complaint.
13.
As a
result, a Supplementary Report of the Investigator was delivered on September
22, 2004. That Report recommended that pursuant to section 41(1) of the Canadian
Human Rights Act, the Commission deal with portions of the Complaint
because it is not satisfied that the other procedure (arbitration) fully
addressed the allegations of failure to provide a harassment free workplace and
retaliation. On February 3, 2005, the Commission advised the parties that it accepted
the recommendation. It was pointed out to the parties that an application for
review could be made to the Federal Court. No such application was made.
14.
On
December 19, 2005, the Investigator submitted a Report to the Commission in
respect of the second complaint recommending that pursuant to s.44(3)(b)(ii) of
the Canadian Human Rights Act, issues of harassment and retaliation, as defined
by the Commission on February 3, 2005, be dismissed. The parties were invited
to make submissions and they did.
15.
On March
17, 2006, the Commission issued its decision respecting the second complaint to
dismiss the complaint on the basis that “the evidence does not support the
complainant’s allegations”. The parties were advised that they could seek
a review in this Court. The Applicant did, and this is that review.
Issues
[3]
The
Applicant raises three issues in her Memorandum of Argument:
(a)
Did
the Commission err in law in declining to have regard to the evidence outlined
in the Applicant’s First Complaint?
(b)
Did
the Commission adopt a view of the factual allegations and evidence provided in
support of the Second Complaint that was patently unreasonable in the
circumstances? (The issue of the standard – patent unreasonableness or
otherwise – will be discussed later in these Reasons.)
(c)
Was
the Commission obliged in law to conduct an investigation of the issues raised
by the Applicant’s complaint of retaliation under section 14.1 of the Act?
[4]
These
issues require an examination of the following:
1.
What
precisely was the evidence and submissions that the Commission had before it
for consideration in arriving at the decision of March 17, 2006, to discuss the
Complaint and what are the issues raised in respect thereof?
2.
What is
the appropriate standard of review of the Court to apply to the decision of the
Commission?
3.
Having
regard to the appropriate standard, what disposition will the Court make of
this Application?
Each of the matters will now be examined.
1. Evidence and
Submissions before the Commission
[5]
The
first Complaint the Applicant made was that submitted March 19, 1999. It dealt
with Bell Canada’s conduct
between April, 1997, and September 15, 1997, in particular, failure to provide
a harassment free workplace and wrongful dismissal. The Commission was made aware
of the fact that there was an ongoing arbitration. On August 30, 1999, the
Commission sent a letter stating that, “…it is being recommended that the
Commission not deal with these complaints pending final outcome of the
arbitration process”. Comments were invited, but apparently none were
made. The Commission does not appear to have done anything more with respect
to this complaint.
[6]
On
May 23, 2003, the Applicant filed a second Complaint which was given a
different file number by the Commission. The date of the alleged conduct at
issue was given by the Applicant as May 24, 2002, the date of the Applicant’s
second termination of employment. The Complaint makes reference to the first
Complaint and says that the file was closed “…on the understanding that
[she] could request that [it] be reopened”. No evidence as to such understanding
can be found in the records before this Court.
[7]
Counsel
for the Applicant in oral argument makes specific reference to certain
allegations made in the second Complaint, namely:
Paragraph 7: Bell Canada took the position that a
return to work as an Associate in Similar Processing was remote and that
additional forms of accommodation would not be “feasible”.
Paragraph 9: Bell Canada took the position that
her employment would be terminated if she “did not locate alternate employment
within Bell Canada during [a three month] time
frame.
Paragraph 12: Bell Canada requested that I attend
monthly meetings with members of its management.
[8]
The
Complaint ends with a concluding paragraph, 19, which counsel argues is just a
summation and not a complete recitation of the Complainant’s evidence. It
states:
19. In conclusion, I believe
that the conduct to which I have been subjected violates my human rights as a
person who suffers from a physical disability. Bell Canada has failed or neglected to locate and/or
create a new position of employment which accommodates my physical disability.
Throughout this process, I have been subjected to undue harassment and
retaliation for asserting my right to accommodation of my physical disability
in the workplace, culminating with the second termination of my employment.
The decision of the Bell Canada to dispute my grievance, dated May 23, 2002, is further
evidence of continuing harassment and retaliation.
[9]
The
Commission’s Investigator was apparently provided with the arbitrator’s award dated
August 12, 2003, as the Investigator’s Report is dated April 15, 2004,
recommending that the Commission take no further proceedings. The Report’s analysis
and recommendation states:
Analysis
9. The arbitral award covered
the same issues as those in the human rights complaint, therefore, the matter
has been dealt with. The only outstanding aspect is that of compensation in
which the parties are currently attempting to reach an agreement. Should
difficulties arise, the arbitrator remains seized of this matter.
Recommendation
10. It is recommended,
pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act that the
Commission take no further proceedings in the complaint because the situation
has been redressed.
[10]
Bell Canada supported
this recommendation, the Applicant, apparently, did not. While there is no
record of the Applicant’s submission as to the Report, there obviously was a
submission made since the Commission asked the Investigator to revisit the
matter and provide a Supplementary Report.
[11]
As
a result, a Supplementary Report dated September 22, 2004, was provided. The
purpose was set out in paragraph 1:
1. The purpose of the
supplementary report is to address the issue whether the allegations of
discrimination have been redressed through the Arbitration awards dated August
12, 2003, and January 26, 2004.
[12]
The
Supplementary Report reviewed the award of the arbitrator:
7. The complainant’s
grievances dealt with the following; termination of employment without just
cause, failure to accommodate, and the respondent’s failure to pay the
complainant full wages while she was looking for alternative employment.
8. The issue addressed during
the first arbitration award dated August 12, 2003, was whether the respondent
met its obligation to accommodate the complainant, and if not, what was the
appropriate remedy. The arbitrator concluded that “accommodation was not
pursued by Bell to the point of undue
hardship…”. The arbitrator also stated that “The grievor also “is not without
blame in the situation. In my view she too did not meet her obligations under
the duty.” The arbitrator found that Bell did not fulfill its duty to accommodate.
9. The arbitrator considered
s.53 of the Canadian Human Rights Act, in deciding the appropriate remedy, and
awarded compensation in lieu of reinstatement because “the relationship between
the employer and employee is one that cannot reasonably be expected to be viable
in the future.”
[13]
As
a result, the following recommendation was made:
12. It is recommended,
pursuant to subsection 41(1) of the Canadian Human Rights Act, that the
Commission deal with the complaint because:
It is not satisfied that the
other procedure has fully addressed the allegations of failure to provide a
harassment-free workplace and retaliation.
[14]
It
is clear that the Supplementary Report distinguished between the issue of
accommodation and said that this was disposed of by the arbitrator, and the
issues of harassment and retaliation which had not, to the Investigator’s
satisfaction, been dealt with.
[15]
The
Commission sent the Supplementary Report to the parties under cover of a letter
dated September 24, 2004, inviting comment. Bell Canada sent a
letter dated October 22, 2004, addressing only a request for an extension of
time, no substantial comments were made. The Applicant made no comments. As a
result, the Commission made a decision sent to the parties by letter dated
February 3, 2005 stating:
“It is not satisfied that the other
procedure has fully addressed the allegations of failure to provide a
harassment-free workplace and retaliation.”
[16]
The
parties were advised that a review under section 18 of the Federal Courts
Act, R.S., 1998, c. F-7, s.1; 2002, c. 8, s.14 could be sought. No party
sought such a review.
[17]
Thus,
the Commission had made a final and binding determination that the issue of
accommodation had been dealt with by the arbitrator, but the Commission would
deal with issues of harassment and retaliation.
[18]
On
August 16, 2005, the Investigator wrote to Applicant’s lawyer, advising that a
defence was expected from Bell Canada and that the
Applicant’s rebuttal comments would then be requested. By letter dated October
20, 2005, the Investigator sent Bell Canada’s defence to
Applicant’s counsel. That letter requested comments and detailed information.
It said, in part:
An examination of Ms Doerr’s
complaint reveals that the only mention of harassment and/or retaliation occurs
in Para. 19 with the statement that
“[t]hroughout this process, I have been subjected to undue harassment and
retaliation for asserting my right to accommodation of my physical
disability…” To enable me to carry out an investigation into these
allegations, I shall require additional information on the harassment your
client alleges she was subjected to – specifically, the person(s) who allegedly
harassed her, as well as a description (including the date) of the specific incident(s)
and/or comments. If possible, the names (and daytime telephone numbers) of any
witnesses who can corroborate Ms Doerr’s allegations should be submitted at
this time.
With respect to retaliation,
please be advised that s.14.1 of the Canadian Human Rights Act stipulates that
any allegations of retaliation must be as a result of a complainant (or
his/her agent)having filed a previous complaint of discrimination with the
Commission. Therefore, I ask that you provide detailed information on those
specific instances in which Ms Doerr believed herself to have been retaliated
against by the respondent as the result of her filing her original complaint in
March 1999.
As noted above, you are
invited to comment on the respondent’s position as stated in the enclosed
letter. You may make whatever comments you deem both relevant and appropriate;
however, I ask that you make a point of addressing the following:
(a number of specific points are raised)
[19]
The
Applicant’s lawyer responded by letter dated December 14, 2006, taking the
position that all of the subject matter raised in the first complaint as well
as the second, needed to be dealt with in the second complaint. It stated that
the second complaint raised additional and more recent examples of harassment.
As to retaliation, the letter states that Bell Canada disputed the Applicant’s
grievances, “the merits of which were plain to be seen”, and that the
only motive was that of retaliation.
[20]
Five
days later, on December 19, 2005, the Investigator (Ms. Craig) provided a
Report which was sent to the parties for comment. As the recommendation made
in this Report was ultimately accepted by the Commission, the Report, in
effect, became the Commission’s reasons. The Report notes, in paragraphs 7 to
10, the arbitrator’s award of August 2003, and the Commission’s decision to
proceed only on the issues of harassment and retaliation.
[21]
The
Report details the request for additional and detailed information and the
Applicant’s failure to provide a substantive response. It says in paragraphs
11 to 14:
11. The complainant does not
provide any specific examples in her complaint to substantiate her allegations
either that the respondent failed to provide her with a harassment-free
workplace or that it retaliated against her. Rather, the sole assertion of
either harassment or retaliation is contained in paragraph 19 of her complaint
which states “…I have been subjected to undue harassment and retaliation for
asserting my right to accommodation of my physical disability in the
workplace…The decision of the Bell Canada to dispute my grievance, dated May
23, 2002, is further evidence of continuing harassment and retaliation.”
12. Given the generalized
statement regarding her allegations of both harassment and retaliation as noted
in Para. 11 above, the complainant was asked to provide further details, including
specific information on the nature and timing of the harassment and/or
retaliation, as well as the names of the persons involved, either as the
originator of the discriminator treatment or as a witness to it. The
complainant, through her counsel, stated that she “has already provided the
Commission and the Respondent with ample detailed evidence to support her
allegations of harassment,” and he cited the two complaints she filed with the
Commission on 19 March 1999 and 23 May 2003.
13. As noted in Para. 5 above, the complainant
confirmed that she filed a second complaint rather than request that he first
be reactivated following the arbitral decision. Her counsel notes that,
“being dissatisfied with the
outcome of the arbitration process, [she] filed the Second Complaint, which is
the subject matter of [the] current investigation. The Second Complaint is an
extension of the First Complaint. It is our position that all of the subject
matter raised in these two Complaints needs to be dealt with in the Second
Complaint.”
14. It should be noted that
the complainant’s first complaint was stood down in mid-October 1999 pending
the resolution of alternate redress – in this case, arbitration. The
complainant never requested that it be reactivated and, consequently, the file
has remained closed and any allegations contained therein cannot be addressed
further. It should also be noted that the allegations of harassment and
failure to accommodate in the complainant’s first complaint involve the
termination of her employment in September 1997 and, as such, they were already
several years out of time when she filed her second complaint in May 2003.
[22]
The
Report concludes with an Analysis and Recommendation:
Analysis
35. As noted in Para. 26
above, the Canadian Human Rights Act specifies that retaliation complaints
filed pursuant to s.14.1 must be associated with the filing of a previous
complaint. The complainant failed to provide any such link between her
allegations of retaliation in this complaint and the complaint she filed in
March 1999.
36. Notwithstanding the fact
that it was not linked to her previous complaint, the evidence does not support
the complainant’s allegation that the respondent’s reason for disputing her
grievances – “the merits of which were plain to be seen” – was retaliatory.
The principles of natural justice include the notion of procedural fairness and
therefore, proceedings should be conducted so they are fair to all the
parties. As the complainant had a right to file a grievance when she believed
the respondent had violated her collective agreement, so, too, did the
respondent have a right to defend itself against her allegations. Clearly,
this is not retaliation.
37. Without specific instances
of harassment being provided, the evidence does not support the complainant’s
allegation that the respondent failed to provide her with a harassment-free
workplace.
Recommendation
38. It is further recommended,
pursuant to s.44(3)(b)(ii) of the Canadian Human Rights Act, that the Commission
dismiss the complaint
because the evidence does not
support the complainant’s allegations.
[23]
As
on previous occasions, comments of the parties were invited. The comments were
to be the last opportunity to comment on the merits of the Complaint. The Applicant’s
lawyer in a letter dated January 9, 2006, to which was attached ten pages listing,
in cryptic form, dates of events and particularizing certain incidents spanning
a period from April 1, 1981 to November 24, 2005. That letter, at pages 1 and
2, contained the following by way of background:
With respect to paragraphs 5
and 6 of the Report, we believe that Ms. Craig’s summary of the background
surrounding the First and Second Complaints (that is, your File Nos. T49079 and
T49080) is factually inaccurate. We wish to point out that the Second
Complaint was filed because Bell
Canada had committed new acts of
discrimination, harassment and retaliation in the intervening time since our
client filed her First complaint. We have no other recourse but to file a new
complaint. We take the position that the First Complaint was still alive,
despite the passage of some four (4) years. The fact is that the parties
continued during this time to attempt to implement the original Award of
Arbitrary W. Raynor. If we had attempted to re-open the First Complaint we
believe that the Commission would have declined our request on this basis.
When the parties efforts to work to a resolution failed, and the Respondent
terminated our client’s employment for a second time, we filed the Second
Complaint. In the Second Complaint, at paragraph 1, our client expressly or
impliedly makes clear that she wishes to re-open the First Complaint
concurrently with the subject matter which gave rise to the Second Complaint.
With respect to Ms. Craig, she
is entirely incorrect when she states that our client filed the Second
Complaint with allegations identical to those of the First Complaint. While
the nature of the alleged violations of the Canadian Human Rights Act remained
the same, the material facts and evidence offered in support of the Second
Complaint are entirely new. The fact remains, however, that the subject matter
of the First and Second Complaints are intertwined, and reflect the unlawful
acts and omissions of the Respondent in relation to our client.
[24]
Bell
Canada responded to
comments made by Applicant’s lawyer by letter dated January 27, 2006, referring
to the Commission’s decision to restrict the complaint to issues of harassment
and retaliation.
[25]
The
Applicant’s lawyer sent a further, unprompted, letter dated February 1, 2006,
to the Commission providing a “further argument”.
Our further argument is as
follows:
While it is not expressly
alleged that the Respondent retaliated against our client because she filed a
complaint under the Canada Human Rights Act (the “Act”),
it is open for the Commission to make a finding of fact in this regard. The
fact of the matter is that our client’s first complaint was never dealt with by
the Commission. It remained unresolved on the date that our client’s
employment was terminated by the Respondent for the second time. In the
circumstances, it may be viewed that this act by the Respondent was retaliation
for her having filed a complaint under the Act. As previously indicated, the termination
was prompted by our client’s continuing request for accommodation and a
workplace free of discrimination. Viewed this way, we believe that there is a
sufficient basis upon which to ground the allegation of retaliation.
[26]
On
February 2, 2006, the Applicant’s lawyer sent a yet further unprompted letter
providing copies of two decisions, that of the Ontario Divisional
Court
in Jones v. Amway of Canada Inc. 2002 CarswellOnt 1191 and that of the
Federal Court in Dubois v. Canada (Attorney General) 2005 FC 1017 commenting
upon those decisions.
[27]
Bell Canada made no
comments as to these last two letters.
[28]
On
March 17, 2006, the Commission communicated its decision to dismiss the
complaint because “the evidence does not support the complainant’s allegations”.
The Commission did not make mention of any of the letters from the parties
commenting on the Report, or the subsequent letters from the Applicant’s lawyer.
Objections to the
Decision and Decision Making Process
[29]
Applicant’s
counsel, in argument, raised the following objections to the Commission’s
decision and how it was arrived at:
1.
The
Commission failed to have regard to the first complaint and issues of
harassment raised in that complaint;
2.
The
Commission failed to have regard to the issues of harassment and retaliation
raised in the second complaint;
3.
The
Commission failed to have regard to the findings of the arbitrator in the 2003
award as to harassment and retaliation; and
4.
The
Investigator failed to conduct any kind of inquiry into the matter and simply
decided the matter “on the pleadings”.
[30]
Respondent’s
counsel says as to these matters:
1.
The first
complaint is a closed matter. It was late in filing in the first place, no
request was ever made to reactivate it. References to the first complaint made
after a delay of several years do not have the effect of reactivating the
complaint;
2.
The
Commission decided that only issues as to harassment and retaliation would be
considered in the second complaint. The issues as to accommodation were dealt
with in the arbitrator’s award of 2003. No party sought judicial review of
that decision;
3.
The
specific instances raised in the second complaint in paragraphs 7, 9 and 12 all
have to do with accommodation and the Commission correctly ignored them. Only
paragraph 19 speaks to harassment and retaliation. Those paragraph 19
allegations are too vague and despite requests by the Commission for
substantiation, all the Applicant could say was that Bell Canada’s defence to
her grievances were harassing and retaliating. Bell Canada is quite entitled to defend a grievance;
4.
The
Commission had before it materials addressing the first complaint, the second
complaint and the 2003 arbitrator’s award. The Investigator’s Report of
December 2005, mentions each of these. Sufficient regard was had to each; and
5.
The
Commission was under no duty to have regard to the evidence as opposed to
comments, if any, raised in Applicant’s lawyer’s letter of January 9, 2006,
commenting on the Report. In any event, such evidence, if any, is inadequate.
[31]
In
order to consider these questions, the Court must first consider the standard
of review.
Standard of Review
[32]
The
Federal Court of Appeal in Sketchley v. Canada (Attorney General) 2005
FCA 404 [Sketchley] at paragraph 45 has directed that Courts are to
apply a pragmatic and functional approach to decisions made by the Commission
under section 44 of the Canadian Human Rights Act. At paragraph 50, it
emphasized that such a review must be considered anew in each instance.
[33]
In
this instance, the Commission had to make the following determinations:
1.
Can a
Complainant in a second complaint require the Commission to refer to
particulars of harassment and retaliation made in a first complaint when that
first complaint was adjourned pending arbitration and no formal request for
revival was made?
2.
Can the
Commission review allegations made in the second complaint so as to determine
if they were disposed of by way of arbitration?
3.
To what
extent must an Investigator conduct an independent inquiry if it can be
determined that, following a request for particulars and evidence, the matter
can be determined upon the materials already before the Commission?
4.
What
regard, if any, is to be given to particularization and evidence supplied by
way of comment upon a Report subsequent to its delivery.
5.
To what
extent must the Investigator, and if necessary, the Commission, set out in the
Report and Decision, its deliberation and reasoning as to each of the
foregoing?
[34]
Framed
in this way, it can be seen that some of the issues deal with procedural
fairness and natural justice. As the Supreme Court of Canada has said in Canadian
Union of Public Employees v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539 the question of standard of review does not arise in respect of
these issues. If the procedure was unfair and did not comply with natural
justice, the decision must be set aside.
[35]
Other
issues, such as whether an allegation is directed to accommodation or
harassment or retaliation is clearly within the particular expertise of the
Commission. Those decisions are entitled to considerable deference.
[36]
Justice
Mactavish of this Court recently conducted an extensive exercise in determining
the standard of review in circumstances very similar to those here, in Loyer
v. Air Canada, 2006 FC 1172. While I am mindful of the Federal Court of
Appeal’s caution in Sketchley, supra, that every instance must be
considered on its own, the analysis in Loyer is directed to
circumstances that are very similar to those at issue here. That analysis is
one that I agree with completely and adopt in the circumstances here. The
appropriate standard of review is that of reasonableness when it comes to a
determination based on evidence and in the exercise of discretion. Should an
error of law have arisen, the standard would be that of correctness.
Was there Reviewable
Error
[37]
Turning
first to the question of fairness and natural justice, it is clear that the
Commission afforded the Applicant and her lawyer ample opportunity to state
what the incidents of harassment and retaliation were and to indicate any
evidence in support. Ample opportunity was afforded to the Applicant to make
out her case. There was no procedural unfairness or denial of natural justice.
[38]
As
to the Commission’s determination as to the second complaint, the December 2005
Report, paragraphs 4 and 5 clearly state that the Applicant was aware that
revival was an issue, yet failed, after an interval of four years to instigate
any revival request. The Applicant’s lawyer’s letter of January 9, 2006, in
the background portion previously referred to, equivocates as to the point, but
acknowledges that a request for revival would have failed. It says the second
complaint was filed because new acts of discrimination, harassment and retaliation
were committed. The Commission made no reviewable error in not considering the
first complaint as forming a continuing basis for allegations before it in the
second complaint.
[39]
As
to allegations raised in the second complaint, the Commission determined, in a
decision not challenged by either party, that issues directed to accommodation
had been dealt with in the arbitration. These are matters clearly within the
expertise of the Commission. The Commission made no reviewable error in
determining what incidents relate to accommodation and what issues relate to
harassment or retaliation.
[40]
The
Applicant’s lawyer’s letters submitted to the Commission after the Report was
issued, endeavoured to put evidence and particulars as to harassment and
retaliation, and further argument to the Commission. None of this was referred
to in the decision of the Commission. These submissions constitute, in effect,
a new or amended form of complaint. The Canadian Human Rights Act
section 41(1)(e) provides that any complaints based upon acts occurring more
than one year previous need not be dealt with unless the Commission in its
discretion decides to do so. At some point the time for making submissions
such as these must end. The Applicant was afforded ample opportunity to put
these matters forward earlier, before the Report was prepared. Comments as to
the Report itself should not be considered as an opportunity to make new or
revised submissions or shore up what is apparently lacking. The Commission
made no reviewable error in not explicitly referring to these submissions in
its decision.
[41]
Further,
the Commission decided that the fact that Bell Canada defended itself in
respect of the second grievance made by the Applicant, did not constitute
retaliation. This may be considered a mixed question of fact and law.
Certainly, in law, no Court would quarrel with the right of a party to defend itself
in such a proceeding. Whether the manner in which such a defence was conducted
constitutes retaliation is a matter of fact and within the Commission’s
expertise to make a determination. No reviewable error has been made in
respect of such determination.
[42]
In
sum, therefore, the Commission made no reviewable error and was reasonable in
respect of its decision of March 17, 2006.
Costs
[43]
The
parties have agreed that, regardless of the outcome, each will bear its own
costs.
JUDGMENT
FOR THE REASONS GIVEN
HEREIN:
1.
The
application is dismissed; and
2.
Each
party will bear its own costs.
"Roger
T. Hughes"
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