A.B. v. Canada (Attorney General), 2004 FC 1669

Date: 20041201

Docket: T-488-04

Citation: 2004 FC 1669

Ottawa, Ontario, the 1^st day of December 2004

Present: THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

A.B.

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]        This is an application for judicial review of a decision by the Canadian Human Rights Commission (the Commission) dated February 6, 2004, dismissing the applicant's complaint pursuant to paragraph 41(1)(e) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act), because it related to acts that occurred more than a year before the complaint was filed. The applicant is seeking an order directing the Commission to decide her complaint or to have the Commission's decision quashed or reversed and referred back for judgment pursuant to such directions as the Court deems appropriate.

ISSUE

[2]        Did the Commission make an error of law or fact or otherwise act in a wrongful or arbitrary manner or contrary to the rules of natural justice or procedural fairness when it found that it should not decide the complaint pursuant to paragraph 41(1)(e)?

CONCLUSION

[3]        For the reasons given below, I answer this question in the negative.

FACTS

[4]        The applicant A.B. (Ms. B. or the applicant) worked for the Canada Customs and Revenue Agency (CCRA) from February 13, 1989, until her dismissal on October 10, 1990. She said she was the victim of harassment occasioned by her national and ethnic background.

[5]        Following her dismissal Ms. B. initiated through her union an internal settlement proceeding with the CCRA. However, in order to meet the prescribed one-year deadline, she wrote the Commission's regional director, Charles Théroux (Mr. Théroux), telling him that if the internal proceeding did not result in a fair settlement she intended to file an action with the Commission. She also indicated that this letter represented a formal complaint against the Minister of National Revenue. However, the letter did not describe the facts on which the complaint was based. In reply, she received an acknowledgment of receipt but no information arising out of her complaint.

[6]        Ms. B. proceeded with her internal remedies between 1990 and 1997. On June 4, 1997, the adjudicator assigned to hear her complaint against section 23 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, found that the Commission and not the adjudicator had jurisdiction to hear the matter. Ms. B. applied for review of this decision before the Federal Court, without success (the date of the Federal Court's judgment is not mentioned in the record).

[7]        The applicant met with Glen St. James (Mr. St. James) of the Commission in 1997, following the adjudicator's decision. On March 30, 1998, she sent further information to Mr. St. James regarding her complaint. She said she had no reply from Mr. St. James in this regard. She also said she had meetings with Johanne Lelièvre (Ms. Lelièvre) of the Commission on April 24 and June 23, 1998 and gave her still more documents. Ms. B. subsequently wrote the Commission on August 28 and September 4, 2001 (almost the same letter) explaining the lengthy delays that had taken place in her case and indicating her intention to pursue her complaint with the Commission.

[8]        On June 2, 2003 Ms. B. received a letter from the Commission indicating that her complaint would not be investigated because of the time that had elapsed since the alleged acts. Further, the letter mentioned that: [TRANSLATION] "further to your call to John Chamberlain in the week of February 1 to 5, 1999, your intake file has been closed" (applicant's memorandum of fact and law, tab C-13). The Commission's letter was written in reply to a letter from Ms. B. on December 3, 2002, but the latter was not part of the record. Ms. B. answered this letter to explain that she did not wish to file a new complaint, but to reactivate her complaint filed by the letter of September 6, 1991. In reply to the allegation that her file had been closed in February 1999, she said: [TRANSLATION] "I never intended to close the file and have received no correspondence to that effect" (applicant's memorandum of fact and law, tab C-14).

[9]        After certain other letters to the Commission, Ms. B. filed a signed complaint with the Commission on November 24, 2003. On December 9, 2003, a Commission representative, Suzanne Best (Ms. Best), wrote the applicant telling her that her complaint would be submitted to the Commission but the recommendation would be that the complaint should not be dealt with because it was based on facts that had occurred over 13 years ago. The applicant was also asked to submit her comments, which she did on December 30, 2003. However, on February 6, 2004, the Commission refused to deal with her complaint on account of the delay.

IMPUGNED DECISION

[10]      The Commission decided pursuant to paragraph 41(1)(e) of the Act not to deal with the applicant's complaint because it involved acts that had occurred more than a year before the complaint was filed.

PARTIES' ARGUMENTS

Applicant

[11]      Most of the applicant's arguments involve procedural fairness. Ms. B. argued that after the adjudicator's decision concluding that only the Commission had jurisdiction to hear this kind of case, she did her best and was diligent in pursuing the remedies available under the Act. She further submitted that her experiences had traumatized her and caused her to suffer depression, and that was why she delayed taking action. She said she never received any complaint form or instruction booklet until September 30, 2003, when Nancy Lalonde (Ms. Lalonde), a Commission complaints analyst, sent her two copies describing the allegations of discrimination which Ms. B. was making against the CCRA.

[12]      The applicant argued that the Commission had not observed its own rules. Despite the fact that the Commission considers a complaint is filed when it receives the complaint form and information sheets with all the required information, neither form nor instruction was sent to Ms. B. when she contacted the Commission, either in September 1991 or after the adjudicator's decision in 1997. Consequently, in the applicant's submission, the Commission did not comply with the procedure it was bound to follow.

[13]      In the applicant's view, in making its decision of February 6, 2004, the Commission did not have an opportunity to consider all the evidence. When it assessed the applicant's complaint, the Commission had before it:

            -           a summary of the complaint and the complaint form signed on November 24, 2003;

            -           certain correspondence between Ms. B. and the Commission as well as other letters between the Commission and the CCRA, all dated 2003 and 2004;

            -           the adjudicator's decision inBoukheloua and Treasury Board (Revenue Canada - Taxation) of June 4, 1997; and

            -           the chronology of events following the filing of the complaint by Ms. B.

[14]      The applicant objected that several other documents were not before the Commission at the time it made its decision and the Commission did not have an opportunity to read them or to review and assess them. Those documents included:

            -           the complaint filed on September 6, 1991;

            -           a letter Ms. B. wrote the Commission on January 30, 1995, indicating that there was a possibility her case would be withdrawn from the Commission des relations du travail, and if that were so she still intended to pursue her complaint with the Commission;

            -           the fact that she contacted Mr. St. James two months after the adjudicator's decision on June 4, 1997, and she had still been sent no complaint form;

            -           her contacts with Ms. Lelièvre in 1998 and the correspondence between the latter and Ms. B., and subsequently, between Ms. B. and other members of the Commission.

[15]      The applicant further indicated that, since no evidence was supplied to the Commission regarding the allegation that her file was closed in February 1999, the Commission could not properly consider that fact. In Ms. B.'s submission, because an application to close has serious implications for an applicant, it should be set down in writing and accurately dated.

[16]      Finally, the applicant submitted that the draft protocol should have encouraged the Commission to process her case, despite the fact that the events of which she was complaining had taken place over a year previously. She further maintained that, since the CCRA did not rebut her allegations, it should have suggested mediation.

Respondent

[17]      The respondent, for his part, argued that since the Commission had broad discretion in exercising its power to consider complaints filed beyond the deadline specified in the Act, the Commission's decision not to deal with Ms. B.'s complaint was reasonable and the application for judicial review should be dismissed.

[18]      In the respondent's submission, the purpose of paragraph 41(1)(e) is to enable the respondent to be able to [TRANSLATION] "turn the page" after a certain time and require that an applicant act promptly. Thus, the respondent maintained that based on the evidence submitted by the CCRA dealing with the prejudice suffered by the latter, if the Commission decided to deal with Ms. B.'s complaint it was entitled to refuse to deal with her complaint despite the evidence she had submitted.

[19]      The respondent also considered that since the Commission had done everything required by the case law before making its decision, it had not failed in its duty of procedural fairness and consequently the Commission's decision was not vitiated.

[20]      The respondent asked that this application for judicial review be dismissed with costs.

ANALYSIS

Standard of review

[21]      Not all complaints lead to investigation. Parliament has laid down certain limitations and court decisions have suggested a restrained approach when the courts must review the Commission's decisions regarding applicability of the deadline. Most of the limitations are contained in subsection 41(1) of the Act:

[22]         Subsection 41(1) gives the Commission considerable discretion in determining whether to deal with a complaint: accordingly, a court must exercise restraint in dealing with such decisions. As Décary J.A. noted for the Federal Court of Appeal in Bell Canada v. Communications, Energy and Paper Workers' Union of Canada, [1998] F.C.J. No. 1609, at paragraph 38 (F.C.A.):

The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.

[23]      Further, the purpose of paragraph 41(1)(e) in particular has been described by Heneghan J. as follows:

The general function of a time limitation period in any piece of legislation relates to gathering credible evidence, the concept of certainty for defendants and due diligence on the part of plaintiffs. Parliament recognized that including such a time limitation was an important aspect of furthering expediency [sic] in the complaint process and fairness to the party responding to a charge of discrimination. Further, section 41(1)(e) recognizes that a black-and-white time bar would not be appropriate. The Commission's fact finding expertise is fairly and appropriately put to work by the added discretion to extend such time limitation if the Commission considers it "appropriate in the circumstances". (See Price v. Concord Transportation Inc., [2003] F.C.J. No. 1202, at para. 38.)

[24]      It can be seen from analyzing the evidence that it was not patently unreasonable for the Commission to refuse to deal with Ms. B.'s complaint. The evidence was that the applicant contacted the Commission at least twelve times before filing her complaint: on September 6, 1991, January 30, 1995, March 30, 1998, April 27, 1998, August 28, 2001, September 4, 2001, December 3 and 16, 2002, June 6, 2003 and October 3, 14 and 15, 2003. Although the applicant pursued her complaint with some diligence, the fact remains that the events of which she is complaining took place over fourteen years ago.

[25]      I am prepared to give the applicant the benefit of the doubt for the delay between September 6, 1991, when she first indicated to the Commission that she might want to file a complaint if the internal proceeding was not satisfactory, and June 4, 1997. However, at the latter date, the date on which the adjudicator rendered his decision that it was the Commission which had jurisdiction to hear the complaint, the applicant had all she needed to proceed promptly with her complaint. In September 1991, she did not tell the Commission the content of her complaint as she confined herself to a general allegation. She did not do so until November 24, 2003, which is much too late.

[26]      The applicant said that she received no complaint form or instruction booklet prior to September 30, 2003, when Ms. Lalonde sent her two copies so she could complete her complaint. However, the evidence clearly indicated that Ms. B. began completing a complaint form with Ms. Lelièvre's assistance in 1998, but that complaint form was never completed. There was then no contact between the applicant and the Commission from June 23, 1998 to August 28, 2001. The only exception was the telephone message allegedly left by Ms. B. on John Chamberlain's voice mail in February 1999.

[27]      There was no breach of the duty of procedural fairness. The applicant complained that the Commission had not considered several documents in making its decision (as indicated earlier in the section titled "Parties' Arguments - Applicant"). However, I note that a reference was made to several of these documents in the letters submitted by Ms. B. on December 30, 2003 and January 22, 2004, in reply to the letter from Ms. Best indicating she would recommend to the Commission that her complaint not be dealt with on account of the delay. Further, the applicant had a hearing and the Commission had all the facts at its disposal to arrive at a decision.

CONCLUSION

[28]      The Commission's decision not to deal with the applicant's complaint was not unreasonable, and consequently there is no basis for intervention. This application for judicial review is dismissed.

[29]      In view of the fact that the applicant represented herself and her understanding of the legal and factual aspects of her case, the situation is not one in which an application for costs is appropriate.

ORDER

            THE COURT ORDERS THAT:

            -           This application for judicial review is dismissed without costs.

Certified true translation

K.A. Harvey

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   T-488-04

STYLE OF CAUSE:                                                   A.B.

v.

THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                             Ottawa, Ontario

DATE OF HEARING:                                               November 15, 2004

REASONS FOR ORDER AND ORDER BY: THE HONOURABLE MR. JUSTICE SIMON NOËL

DATED:                                                                      December 1, 2004

APPEARANCES:

A.B.                                                                              FOR HERSELF AS APPLICANT

Alexandre Kaufman                                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario