Date: 20040803
Docket: T-1123-02
Citation: 2004 FC 1053
Ottawa, Ontario, August 3, 2004
Present: THE HONOURABLE MADAM JUSTICE GAUTHIER
BETWEEN:
HENRY BERTEAU, FRITZ APPOLLON, GINETTE ARSENAULT,
MARIE JAVELINE BARTHÉLEMY, SYLVIE BOISVERT,
BODHAN CAP, MARIE MICHELLE DELVA, CHANTAL DÉMOSTHÈNE,
DANIEL DICAIRE, ROLAND DICAIRE, JACQUELINE EUGÈNE,
LOUISE FOISY, YVES GOEDIKE, THÉRÈSE JEAN,
MARYSE JEAN-BAPTISTE, VIVIANE JEAN-MARIE, ANITA LANTEIGNE,
ALBERT MAILLY, JACQUELINE PIERRE CANUEL,
OTHNIEL STERLIN, GHASSAN TALNOUK and GAÉTANE TREMBLAY
Applicants
and
ATTORNEY GENERAL OF CANADA and
CANADA POST CORPORATION
Respondents
REASONS FOR ORDER AND ORDER
[1] In June 2002, the Canadian Human Rights Commission (the Commission) dismissed because it was out of time the complaint filed by Mr. Berteau, on his own behalf and on behalf of 22 of his colleagues, who had been denied a promotion because in 1995 they had failed a dexterity test imposed by the Canada Post Corporation (Canada Post) which, the applicants allege, was discriminatory and contrary to sections 7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act). (All of the relevant sections of the Act are reproduced in an appendix.)
[2] Mr. Berteau is seeking judicial review of this decision. He submits that the Commission should have granted him an extension of the one-year period prescribed in paragraph 41(1)(e) in the same way and on the same basis as the one it had granted to other employees represented by Jeannine Bastide, who had filed their complaints on March 29, 1996, in regard to the same discriminatory test.
[3] The applicants further submit that they had informed the Commission of the offending practices alleged against Canada Post as early as November 24, 1995, and that this "complaint" had interrupted the limitation period in their regard. The filing and adjudication of a grievance by their union had also had this effect, they say.
[4] They submit that in any event the discriminatory practices by Canada Post continued until 1999, since this dexterity test was administered until that date, and that this was not considered by the Commission.
[5] The applicants argue that they had a legitimate expectation that the Commission would act diligently after receiving the letter of November 24, 1995, and would ensure that their rights were protected. In this regard, they also rely on the doctrine of promissory estoppel.
[6] Finally, they submit that in the particular circumstances of this case, including the Commission's contradictory decision to deal with the complaints by Ms. Bastide and the 62 other employees she represents, the Commission's decision not to exercise its discretion in their favour is patently unreasonable.
[7] Before analyzing these arguments, it is necessary to summarize some relevant facts.
[8] The dexterity test which, according to the applicants, discriminated against persons of their age, was administered to them by Canada Post in March and April 1995.
[9] On November 24, 1995, four employees of Canada Post - Jeannine Bastide, Jeannine Bourassa, Lucien Gravelle and Normande St-Pierre - sent a letter to the Commission in which they denounced the actions of Canada Post, including the imposition of this discriminatory test. In a footnote, after their signatures, the following note appears:
[translation] The signatories of this letter, whose names appear above, are proceeding for and on behalf of the 129 persons who are aggrieved by this situation.
[10] However, these 129 persons are not identified in the letter.
[11] On February 28, 1996, the Commission informed Ms. Bastide that she would have to obtain the written consent of the employees on whose behalf she wished to file a formal complaint. After some correspondence back and forth, Ms. Bastide filed two formal complaints on March 29, 1996 (one under section 7 of the Act, the other under section 10), for herself and 62 other Canada Post employees, whose names are listed in these complaints.
[12] After being notified that a grievance had been filed by the union representing these complainants, the Commission, at the request of Canada Post, suspended its process in regard to the complaints. On November 5, 1999, the adjudicator dismissed the grievance and, on November 24, 2000, the Superior Court of Québec dismissed the application for judicial review of that decision.
[13] The Commission reopened the file and, after receiving, on November 22, 2001, a recommendation to this effect from its investigator, Marielle Cofsky, it decided to deal with the complaints of the 63 employees, even though Canada Post argued that the complaint was out of time under paragraph 41(1)(e) of the Act. The Commission stated:
[translation]
- The complainants contacted the Commission within the year following the alleged discriminatory practice; and
- The complainants' delay in signing the complaints results from their efforts to avail themselves of other remedies.
[14] More than five years after the filing of these complaints by Ms. Bastide, the applicants instructed Mr. Berteau to file a complaint on their behalf. This complaint was filed on February 11, 2002.
[15] On February 26, 2002, Ms. Cofsky, the same individual who investigated in Ms. Bastide's cases, recommended to the Commission that it not deal with the complaint by the applicants. This report was communicated to the parties and they both submitted written representations.
[16] On June 19, 2002, the Commission notified the applicants that it would not deal with their complaint because:
[translation]
- it covers acts that occurred more than one year before the filing of the complaint; and
- the complainants waited seven years before indicating their desire to join in the first complaint.
ANALYSIS
[17] After the hearing, the parties submitted some supplementary representations on the applicable standard of review. The applicants argue that in view of the importance of the rights at issue and the finality of the decision, the Commission's conclusions should be analyzed according to the correctness standard. They also say that even if the standard of the patently unreasonable decision were to be applied, the decision should be set aside.
[18] The respondent argues that the issue of whether or not a complaint is out of time is essentially a question of fact that should be subject to the standard of the patently unreasonable decision. However, it thinks that even if a more restrictive standard were applied, such as the reasonableness standard, the Court should not intervene since the decision is reasonable.
[19] The respondent submits that at the hearing, the applicants did not argue the questions of law that were initially raised in their memorandum, so the correctness standard should not apply.
[20] In Pierce v. Concord Transportation Inc., [2003] F.C.J. No. 1202, Mr. Justice Heneghan applied the pragmatic and functional approach in determining the standard applicable to a decision by the Commission to exercise its discretion to extend the time prescribed in paragraph 41(1)(e) of the Act. The Court adopts the comments in this regard (paragraphs 37 to 42) and finds that the standard of the patently unreasonable decision applies to the issue of whether or not the Commission should in this case have exercised its discretion in favour of the applicants.
[21] However, a more restrictive standard of review applies to the issue of whether the Commission was required to rule on this complaint, because through its conduct it had created a legitimate expectation, or had given rise to a promissory estoppel, or because the complaint had not been filed outside the one-year period owing to the interruption in the limitation period. Indeed, the Commission has no particular expertise in this regard. But in this case the Court need not determine whether the applicable standard here is reasonableness or correctness since it finds, for the reasons set out hereunder, that the Commission's decision on all of these questions was correct and does not contain any reviewable error.
[22] This being said, some questions of law raised before the Commission should be addressed first, since this will determine whether, because of an interruption in the limitation period, for example, the Commission was required to rule on this complaint and therefore whether it exceeded its jurisdiction by exercising its discretion to reject the complaint.
Legitimate expectation and promissory estoppel
[23] In reference to the applicability of the notions of legitimate expectation and promissory estoppel in this case, the applicants rely on the decision of the Quebec Court of Appeal in Centre hospitalier du Mont-Sinaï v. Ministère de la santé et des services sociaux, [1998] Q.J. No. 2982 (QL), affirmed by the Supreme Court of Canada, ([2001] 2 S.C.R. 281). In their view, the Commission's conduct, after the letter of November 24, 1995 was sent, intimated to the 129 aggrieved employees that it would go about its work competently and diligently, that it would ensure that all of the workers concerned would be identified and included as victims of discrimination and that their interests would be protected.
[24] The decision in Mont-Sinaï, supra, did not alter the conditions that must be fulfilled by a party invoking promissory estoppel. The applicants must therefore establish that:
(i) by its words or its conduct, the Commission made a promise or assurance to them;
(ii) which was intended to affect their legal relationship and to be acted on;
(iii) in reliance on the representation,
(iv) they acted on it or in some way changed their position.
This promise or assurance must also have been unambiguous.
[25] Even if the concept of legitimate expectation does not require evidence of all of these factors, the applicants must at least demonstrate some unambiguous conduct on the part of the Commission.
[26] It is clear from the communications between the Commission and Ms. Bastide that the Commission never considered the letter of November 24, 1995, as a complaint within the meaning of the Act and that it clearly indicated that it was not accepting a complaint filed by a third party unless this third party obtained the written consent of the victims it was representing. It is also clear that Ms. Bastide was notified that she was the one who was to make the necessary moves in this regard.
[27] If Ms. Bastide and the other signatories of the November 24 letter were indeed the mandataries of the applicants, the communications between these individuals and the Commission are enforceable against them. The applicants argue that Ms. Bastide did not contact them to obtain their consent. This is not the Commission's fault. There is no possible question of promissory estoppel on this basis.
[28] It was not the Commission that sent the letter of November 24, 1995, and the applicants did not indicate in their memorandum or at the hearing any other facts on the basis of which the Court should find some unambiguous conduct by the Commission that would give rise to a legitimate expectation.
[29] Under subsection 40(1), it is the Commission's job to decide the form that complaints must take to be receivable. The applicants have presented no evidence that the Commission generally accepted some complaints in the form of a letter or that it generally accepted some complaints made by an individual on behalf of other victims without requiring a written consent by the victims concerned or that their names be specifically disclosed.
[30] The applicants submit that the Commission has a social role, as described in section 2, the Act's purpose clause, and that they were thereby entitled to expect that it would protect their rights. However, they have not indicated what principle of law or what provision would enable the Court to find that the Commission itself had a duty to see to the identification of the 129 victims referred to in the letter of November 24, 1995, and to ensure that a consent to the filing of a complaint was obtained from each of them.
[31] The Act does not impose any such obligation. Under subsection 40(3), the Commission may, in some cases, initiate a complaint itself, but it never has any obligation to do so.
[32] This being said, the Commission may take into account the sending of this letter in its overall analysis of the circumstances cited to justify an extension, but it was under no obligation to extend the time beyond the year prescribed in paragraph 41(1)(e) on this basis.
Interruption of the limitation period
[33] As to the alleged interruption of the limitation period through the filing of a grievance by the union, here again the applicants failed to explain to the Court what principle of law they were relying on to justify their conclusion.
[34] The complaints filed by Ms. Bastide and Mr. Berteau are not complaints by the union. Parliament clearly had in mind situations in which a grievance adjudication co-existed with an investigation by the Commission concerning a complaint (subsection 41(1)). It gave the Commission the discretion to decide whether these two remedies should be pursued consecutively or simultaneously, and it was the Commission as well to which it gave the discretion to determine whether the pursuit of another remedy such as grievance adjudication constituted an exceptional circumstance sufficient in a particular case to warrant an extension of time under paragraph 41(1)(e). So this is a question not of law but of fact that is left to the assessment of the Commission. There is no indication by Parliament that this factor was necessarily to be determinative in itself.
[35] As to the argument that the receipt of Ms. Bastide's complaints interrupted the limitation period in favour of the applicants, because the 129 aggrieved employees are solidary creditors of Canada Post, the applicants rely on article 2900 of the Civil Code of Québec:
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Art. 2900. Interruption with regard to one of the creditors or debtors or a solidary or indivisible obligation has effect with regard to the others.
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Art. 2900. L'interruption à l'égard de l'un des créanciers ou des débiteurs d'une obligation solidaire ou indivisible produit ses effets à l'égard des autres.
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[36] The respondent replies that this article has no application here. The solidarity between these debtors is provided neither in the Act nor by contract. Furthermore, if the victims were solidary creditors, Canada Post, under article 1541 of the Civil Code of Québec, could perform its obligation toward only one of the creditors and be released toward all.
[37] The solidarity argument is simply untenable and must be rejected. The Act deals with personal and individual rights; there can be no issue of solidary obligation here.
[38] Naturally, the Commission could have considered the existence of a complaint by other employees who say they were aggrieved by the same dexterity test in its analysis of the factual context. In fact, the investigator did examine the impact of these complaints on the preservation of the evidence by the employer.
Commission's exercise of its discretionary authority
[39] Still to be examined is the final argument of the applicants, to the effect that it was patently unreasonable for the Commission to decline to exercise its discretion in their favour in the circumstances of this case, having regard in particular to the contradictory recommendation of the investigator to hear and determine Ms. Bastide's complaints.
[40] In their complaint dated February 11, 2002, the applicants described their position as follows:
[translation] On November 24, 1995, four persons signed a letter addressed to a Commission officer stating that they represented the 129 persons aggrieved by this situation. We, the co-complainants, state that we believed that the complaint signed on March 29, 1996, was signed on behalf of the 129 persons who had signed the grievances and on behalf of whom the letter of November 24, 1995, was signed. It is only now, more than five years later, that we learn that we are not part of the group of 63 persons on behalf of whom the complaint of March 29, 1996, was signed.
[Emphasis added]
[41] In the complaints of March 29, 1996, Ms. Bastide specifically states:
[translation] We are a group of more than 50 temporary employees, on appeal (see list attached hereto).
[42] The applicants did not explain to the Commission or the Court how and when they learned of the existence of the complaints of March 29, 1996, or why they believe they were made on behalf of 129 employees when the attached list included only 63 names. Nor is it clear when and how they learned that they were not part of this group. At the hearing, the applicants' counsel stated that they had learned this by communicating with the Commission, on May 30, 2001.
[43] As the investigator's report indicates, Canada Post had also filed a handwritten letter by Gaétane Tremblay (an applicant in the present proceeding) dated June 19, 2001, which stated:
[translation]
Here is the reason why I did not follow my co-workers in the court proceedings in 1995.
It is because I was unaware that these proceedings were taking place. We do not work much because CANADA Post called us by alphabetical order. (L. Tremblay letter) I was not coming in often.
One of my friends, Ms. Ginette Arsenault, informed me of it (Proceeding) shortly afterwards.
And I did not hesitate an instant. I joined the Group.
[Emphasis added]
[44] Pursuant to paragraph 41(1)(e), the applicants had to persuade the Commission that the circumstances warranted the exercise of its discretion in their favour. The Commission considered that the circumstances in the Bastide case were different. In this regard, there is an essential difference that emerges from the record and the investigator's report. If the discriminatory practice is viewed as the test in March and April 1995, the formal complaints meeting all the Commission's requirements were filed by Ms. Bastide within the one-year period prescribed in the Act. If, however, January 1995, is considered as the date of the discriminatory practice, they were filed 14 months afterwards. So it would have been at most an extension of two months that was granted.
[45] The Court rejects the applicants' contention that in this case the filing of a formal complaint was a technicality that could not justify a decision that differed from the one made in regard to Ms. Bastide's complaints. In enacting paragraph 41(1)(e), Parliament clearly indicated that the length of the period prior to filing a complaint under subsection 40(1) was an essential factor for consideration.
[46] It is obvious from reading the investigator's report that the Commission considered all of the relevant circumstances, including the existence of Ms. Bastide's complaints and its decision in these cases, and that the applicants had an opportunity to correct the factual inaccuracies in the investigator's report and add some further relevant facts.
[47] The applicants have failed to establish that the Commission overlooked some fact or evidence. The Commission did not have to discuss explicitly in its decision the fact that the test was administered until 1999. It had clearly been notified of this fact. Even if this date might have been relevant to the calculation of the one-year period, the applicants' complaint would be out of time. This fact is irrelevant to the period cited by the Commission.
[48] In the Court's opinion, it was not unreasonable, and certainly not irrational, for the Commission to weigh all of the circumstances relevant to Ms. Bastide's complaints in a way that differed from the way it approached the applicants' complaints, since at least one important aspect of the mix was quite different.
[49] The Court is also satisfied that the reasoning adopted by the Commission justifies its decision to decline to deal with the applicants' complaint.
[50] The Commission viewed the lengthy delay between the filing of the complaint of March 29, 1996, and the time when the applicants signified their desire to join in this complaint as a significant factor. It is clear that the explanations given by the applicants in this regard were not considered satisfactory or sufficient to justify an extension of the one-year deadline under the Act. This was a relevant consideration. The Commission's conclusion is not unreasonable, in view of the evidence as a whole.
ORDER
THE COURT ORDERS that the application is dismissed with costs.
"Johanne Gauthier"
Judge
Certified true translation
Jacques Deschênes, LLB
ANNEXE
Canadian Human Rights Act, R.S.C. 1985, c. H-6
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7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
[...]
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7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
a) de refuser d'employer ou de continuer d'employer un individu;
b) de le défavoriser en cours d'emploi.
...
|
|
10. It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
[...]
|
10. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite et s'il est susceptible d'annihiler les chances d'emploi ou d'avancement d'un individu ou d'une catégorie d'individus, le fait, pour l'employeur, l'association patronale ou l'organisation syndicale :
a) de fixer ou d'appliquer des lignes de conduite;
b) de conclure des ententes touchant le recrutement, les mises en rapport, l'engagement, les promotions, la formation, l'apprentissage, les mutations ou tout autre aspect d'un emploi présent ou éventuel.
...
|
|
40. (1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.
(2) If a complaint is made by someone other than the individual who is alleged to be the victim of the discriminatory practice to which the complaint relates, the Commission may refuse to deal with the complaint unless the alleged victim consents thereto.
(3) Where the Commission has reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice, the Commission may initiate a complaint.
[...]
|
40. (1) Sous réserve des paragraphes (5) et (7), un individu ou un groupe d'individus ayant des motifs raisonnables de croire qu'une personne a commis un acte discriminatoire peut déposer une plainte devant la Commission en la forme acceptable pour cette dernière.
(2) La Commission peut assujettir la recevabilité d'une plainte au consentement préalable de l'individu présenté comme la victime de l'acte discriminatoire.
(3) La Commission peut prendre l'initiative de la plainte dans les cas où elle a des motifs raisonnables de croire qu'une personne a commis un acte discriminatoire.
...
|
|
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
[...]
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
|
41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants :
[...]
e) la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances.
...
|
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1123-02
STYLE: HENRY BERTEAU, FRITZ APPOLLON, GINETTE ARSENAULT, MARIE JAVELINE BARTHÉLEMY, SYLVIE BOISVERT, BODHAN CAP, MARIE MICHELLE DELVA, CHANTAL DÉMOSTHÈNE, DANIEL DICAIRE, ROLAND DICAIRE, JACQUELINE EUGÈNE, LOUISE FOISY, YVES GOEDIKE, THÉRÈSE JEAN, MARYSE JEAN-BAPTISTE, VIVIANE JEAN-MARIE, ANITA LANTEIGNE, ALBERT MAILLY, JACQUELINE PIERRE CANUEL, OTHNIEL STERLIN, GHASSAN TALNOUK and GAÉTANE TREMBLAY
and
THE ATTORNEY GENERAL OF CANADA and
CANADA POST CORPORATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 4, 2004
REASONS FOR ORDER
AND ORDER: MADAM JUSTICE GAUTHIER
DATED: AUGUST 3, 2004
APPEARANCES:
Pierre Langlois FOR THE APPLICANTS
Suzanne Thibodeau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pierre Langlois FOR THE APPLICANTS
Saint-Lambert, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General Attorney General of Canada
of Canada
Heenan Blaikie LLP FOR THE RESPONDENT
Montréal, Quebec Canada Post Corporation
Although the applicants insist that a list of the employees who were administered the dexterity test in the spring of 1995 was given to the Commission in June 1995, there is no evidence in the record to that effect. Moreover, the list to which they refer includes 357 names and there is no indication as to how the Commission could have used it to identify the 129 persons referred to in the letter of November 24, 1995, without conducting an investigation.
The applicants also submitted that this argument applied to the letter of November 24, 1995, which, they said, constituted a complaint. There is no need to comment separately on this argument since the Court has found that the Commission did not err in failing to consider this letter as a complaint within the meaning of subsection 40(1) of the Act.
This aspect is discussed in a general way in the investigator's report but there is no discussion of whether Canada Post retained the individual results of the employees who were not listed in the complaints of March 29, 1996, and whether, by virtue of this fact, the addition of 63 victims would adversely affect it.
It appears that the same counsel represented Ms. Bastide and Mr. Berteau before the Commission when the investigator's recommendations were communicated to them.
Although the investigator's report states that these complainants had in fact been tested in March and April 1995 (p. 3 of the report in case Q 13854), their complaints describe the date of the alleged discriminatory practice as January 1995 and on. According to the investigator, this description is erroneous.
The applicants told the Court that they accepted all of the investigator's findings of fact. Moreover, they did not note any errors in this regard in their representations to the Commission. However, the Court notes that it is not accurate to say seven years had elapsed between the filing of the complaint of March 29, 1996, and the time when the applicants expressed a desire to join in this complaint. It was actually six years that elapsed. But the principle remains the same and the Court concludes that this error in calculation is not determinative since all of the relevant facts are clearly noted in the investigator's report.
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