20010117
T-910-99
Between:
MARIANNA GEE,
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE,
Respondent
REASONS FOR ORDER
Muldoon, J.
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, Chap. F-7, as usual, in respect of a decision rendered by the Canadian Human Rights Commission in a complaint of the applicant against the Department of National Revenue pursuant to section 41(c) and subsection 44(3)(b)(i) of the Canadian Human Rights Act, R.S.C. 1985, Chap. H-6, as amended, (the Act).
ORDER SOUGHT
[2] The applicant seeks an order declaring:
| 1) that the Canadian Human Rights Commission (CHRC) take further action in respect of the applicant's complaint by way of investigation, conciliation and/or appointment of a tribunal; and, |
| 2) that the previous decision of the CHRC is invalid or unlawful and [which] quashes, sets aside or refers the previous decision back for determination in accordance with the Court's direction. |
GROUNDS
[3] The applicant bases this application for judicial review on the grounds that the CHRC:
| 1) committed an error of jurisdiction; |
| 3) did not comply with the principles of natural justice or procedural fairness; and/or |
| 4) made an erroneous finding of fact. |
FACTS
[4] Marianna Gee (applicant) commenced her employment with the Department of National Revenue (respondent) in November 1989, at a PM-2 designation in the Customs and Excise Department. From that time until the late summer of 1991, her immediate supervisor was Douglas McLean. During that period, Ms. Gee recorded 24 incidences of what she felt were harassing and discriminatory behaviour emanating from her supervisor which ranged from a negative performance appraisal, to his support of a discriminatory complaint by a vendor. Although she sought redress through available internal procedures, including appealing her 1991 performance appraisal and filing a grievance with her union in 1992, the applicant also contacted the CHRC in Winnipeg, on 25 February, 1993. The CHRC declined to hear her complaint on the basis that it was out of time.
[5] In October 1991, Ms. Gee applied for an AU-O3 designation by means of a competition. Despite the negative reference check provided by Douglas McLean, the applicant placed fifth on the eligibility list. Although she did not receive a permanent appointment to the position, as did the four candidates ahead of her, she was placed in the position on an "acting" basis.
[6] In December 1993, the applicant filed an internal harassment complaint against Douglas McLean. An internal investigation was conducted and, out of the 24 allegations made, six were determined to be founded allegations of harassment, one was a founded allegation of discrimination on the basis of race and one was a founded abuse of authority.
[7] In January 1995, Ms. Gee again submitted her complaint to the CHRC providing the updated information regarding the results of the internal investigation. However, on 7 February, 1995, the CHRC again declined to address her complaint.
[8] Based on the above findings, Ms. Gee prepared a "rebuttal to the investigation report" and forwarded it to the then Regional Director General of the respondent, Mr. M. Jordan, on 23 June, 1994. Due to her dissatisfaction with the 7 July, 1995, response received from Mr. Jordan, the applicant and a union representative, Mr. George Smith, attended a meeting in October 1995, with the new Assistant Deputy Minister, Rod Monette, and Larry Nicolay, Regional Staff Relations Officer. During this meeting it was determined that Ms. Gee would be conditionally appointed to an AU-O3 position without a competition, subject to appeal. She was assured that the respondent would defend her appointment should any appeals be filed.
[9] Around 9 November, 1995, the applicant received a copy of a memorandum of agreement (the Agreement) already signed by Mr. Rod Monette. The document was returned to Mr. Monette on 11 November, 1995, with the applicant's signature attached. No representative of the applicant's union signed the memorandum of agreement. Subsequent to the Agreement, Ms. Gee was appointed to the AU-O3 position, without competition, but none of the involved parties anticipated the 33 appeals which were launched. Around 29 December, 1995, the applicant received a formal offer of the (Audit Manager, Audit Division, Winnipeg) AU-O3 position, conditional on the resolution of any appeals, which she signed on 9 January, 1996.
[10] During January 1996, the applicant received notification from her union, via George Smith, that she, in her rôle of intervenor, would not be provided with any representation for the appeals because it was union policy to care for the interests of the appellants. Moreover, on 13 February, 1996, the respondent forwarded notification to the union, and ultimately to the applicant, that it had "conceded" the case due to the overwhelming number of appeals (33) and, therefore, would not be defending the applicant's appointment. On 30 April, 1996, the applicant appeared on her own behalf at the staffing appeals respecting her appointment, but was not successful due to the respondent's choice to concede at the outset of the hearing. As a result, on 13 May, 1996, the applicant lost her appointment as an "acting" AU-O3, which she had held for over three years, and reverted back to her AU-O2 position, with the attendant loss of salary.
[11] As a consequence, the applicant was on sick leave from 14 May, 1996, until September 1996, when she was able to arrange for a lateral secondment to Consulting and Audit Canada. She was promoted to Chief Auditor in April 1998, and continues to be employed in that position.
[12] After several further attempts to obtain a remedy from the CHRC, the Commission finally accepted the complaint for consideration on 30 April, 1999. However, the Commission declined to take further action after determining that "no further proceedings are warranted due to the Agreement reached between the parties."
ISSUE
| Whether the Commission committed a reviewable error in dismissing the applicant's complaint pursuant to section 41(c) and subsection 44(3)(b)(i) of the Act? |
APPLICANT'S SUBMISSIONS
[13] The crux of the applicant's position is that the CHRC cannot dismiss Ms. Gee's complaint on the basis of the Agreement, since one cannot contract out of the provisions of the Act. In fact, the Supreme Court of Canada, in Bell v. Canada (Canadian Human Rights Commission)1, has stated that the nature of human rights legislation is that of public policy, and, as such, its provisions cannot be waived or varied by a private contract. The applicant's main argument is, by analogy, if one cannot contract out of the right to complain of unjust dismissal under the Canada Labour Code, then a fortiori one ought not to be able to contract out of his or her statutory human rights, absent clear and express legislative authority to do so. Therefore, the applicant asserts that the issue for consideration in this application is one of law, not fact, because of the nature of the legislation in question, not the nature of the release signed.
[14] The applicant argues that, under the Act, a complainant does not have the sole right to stop the process simply because a complainant withdraws her situation from consideration, the Act authorizes third parties, including the Commission, to initiate complaints on behalf of others. Therefore, the complaint may continue, contrary even to the "victim's" wishes." One must then consider how a private settlement between the directly affected parties can prevent a third party from initiating a complaint. The answer is that it cannot. Thus, in a situation such as this, a private contract to nullify the complaint is irrelevant.
[15] Moreover, the applicant asserts that pursuant to subsections 44(3)(a) and 44(3)(b) of the Act, the Commission is authorized only to consider the sufficiency of the evidence before it, on the merits, to determine whether a complaint in warranted.
| 44. (3) On receipt of a report referred to in subsection (1), the Commission |
| a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied |
| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and |
| (b) shall dismiss the complaint to which the report relates if it is satisfied |
| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted |
Thus, the Commission holds no mandate to consider the adequacy of a private settlement, regardless of whether or not it purports to release a responding party from a pending complaint. Therefore, the applicant asserts that the Commission went beyond its jurisdiction when it considered the contents of the private settlement and its impact on Ms. Gee's complaint, because that was a determination of law beyond the Commission's expertise and jurisdiction.
[16] The applicant assumes the posture that the Commission committed an error of law, and rendered a patently unreasonable decision, by determining that the release was valid and enforceable, and subsequently allowing that one is permitted to contract out of human rights legislation. It is asserted that the Commission retains jurisdiction over the complaint until the release is determined to be valid and enforceable, and that it is the tribunal which has the jurisdiction to make such a determination [Bell]. Therefore, it is submitted that the Commission was incorrect in assuming the validity of the release because that was a determination of law and beyond the expertise of the Commission.
[17] It is further contended that only those agreements reached between parties "after the filing stage of a complaint and before the commencement of a hearing before a ... Tribunal ..." may be considered by the Commission as settlement of a complaint [section 48, Canadian Human Rights Act]. Thus, it logically follows that the Commission is precluded from considering any agreement reached outside of the stated paradigm.
[18] Moreover, the applicant maintains that since the Commission based its decision on the settlement and not the merits of the evidence before it, the CHRC failed to exercise its jurisdiction. As Mr. Justice La Forest recognized in Bell, "the central component of the Commission's role ... is that of assessing the sufficiency of the evidence before it."(p. 891). By failing to fulfill this mandate, the CHRC, as the applicant submits, committed a reviewable error.
[19] The Supreme Court of Canada, in Bell, also held that the Court will not owe or evince any deference to a tribunal when it is considering or determining questions of law, and the standard to which it will be held is that of correctnes. It follows from this that since a tribunal is not owed deference on questions of law, Commissions should not be addressing them at all. However, if they do, those determinations will also be held to that standard of review.
[20] By way of a final submission, the applicant contends that the test required of the Commission in determinating whether to pass a complaint on to the next stage resides at a low threshold. S.E.P.Q.A. v. Canada (C.C.D.P.), [1989] 2 S.C.R. 879 clearly states:
| It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. (899) |
[21] On the issue of whether this Court has the jurisdiction to grant the remedies sought, the applicant notes that the legislation (Federal Court Act, section 18.1(3)(a)) provides that the Federal Court may order the Commission and other tribunals to do any act or thing which they have unlawfully failed or refused to do, or have unreasonably delayed to do. Thus, it was submitted that the Federal Court has the authority to declare invalid or unlawful any decision of the Commission, and effectively to set it aside.
[22] The strongest basis for the assertion that one cannot contract out of human rights legislation comes from the Supreme Court of Canada decision in [1982] 1 S.C.R. 202">Ontario (Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, wherein Mr. Justice McIntyre for the Court stated:
| It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void, as contrary to public policy. |
[23] In Keewatin Regional Health Board v. Peterkin, [1997] N.W.T.J. No. 6 (S.C.), Mr. Justice Vertes held that:
| [a] release is not a bar to [the] exercise of jurisdiction under the Act to investigate the complaint; and, ... the settlement agreement is a relevant fact which may be taken into account in relation to the merits of the complaint and what remedies, if any, may be appropriate under the Act ... [but] one cannot contract out of human rights legislation enacted for the public good. |
The Court went on to quote from [1982] 1 S.C.R. 202">Etobicoke, (supra), where it was noted that "if by giving effect to the waiver the Officer jeopardizes the rights of other citizens, that would be contrary to public policy." In further discussion of the decision, Vertes, J. held that
| Because such legislation is enacted for the benefit of the community at large and of its individual members, as a matter of public policy the provisions of such legislation may not be waived or varied by private contract. |
This position is further reiterated in Re Winnipeg School Division No. 1 and Craton et al. [1985] 2 S.C.R. 150; (1985) 21 D.L.R (4th) 1 (S.C.C.), when the Court, again by Mr. Justice McIntyre, states: "The Human Rights Act is legislation declaring public policy and may not be avoided by private contract."(154).
RESPONDENT SUBMISSIONS
[24] The respondent maintains that the Commission did not err in considering, and/or basing its decision on, the existence of the settlement because it was a piece of relevant evidence before it. On this basis, the respondent disputes the contention that the Commission made a legal error, but concedes that a legal error or a decision which is wrong should be subject to judicial review.
[25] The respondent contends that it is a mischaracterization of the Commission's decision to state that the memorandum of agreement was a bar to the complaint going forward to the tribunal. It is asserted that the Commission determined that, in the circumstances, an inquiry was not warranted because of the Agreement, and, therefore, the decision is not patently unreasonable. In Larsh v. Canada (1999) 166 F.T.R. 101, Mr. Justice Evans is quoted at p. 108, thus: "... the reasons for dismissing the complaint given by the Commission in its letter of decision should not be dissected and read without context." Subsequently, it was submitted that the Commission was entitled to consider the fact that the parties had arrived at an agreement when determining to dismiss the complaint.
[26] Based on the aforementioned argument, the respondent contends that the applicant has failed to demonstrate any reviewable errors which would warrant interference by this Court. Moreover, it is submitted that the Commission needs not to review every document put forward by the applicant and may rely on the material contained in the investigator's report and such other underlying material as it, in its discretion, considered necessary.
[27] On the issue of standard of review, the respondent contends that the decisions in Patel v. Canada (Minister of National Health and Welfare) (1995), 101 F.T.R. 213 (T.D.) and Slattery v. Canadian Human Rights Commission (1994), 73 F.T.R. 161 (T.D.), are instructive.
[28] In Patel, the Court quoted several Supreme Court of Canada decisions in determining that deference should be accorded to the Commission when it decides to dismiss a complaint pursuant to subsection 44(3)(b)(i). In particular, the quote from [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2 at 7-8, clearly states:
| It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised that discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
[29] The aforementioned position is also stated in Slattery wherein the Court held that the Commission's discretion to dismiss a complaint pursuant to subsection 44(3)(b)(i) is cast in broad terms. Moreover, the Court held that the Commission has a duty to inform the parties of the substance of the evidence and to allow the parties an opportunity to respond to that evidence and to make representations in relation to that evidence.
STANDARD OF REVIEW
[30] The issue of standard of review is always a contentious one in light of the court's desire to avoid interfering with the mandates of boards and tribunals. A number of previous decisions of the Supreme Court of Canada and the Federal Court of Appeal have established a principle of a general degree of deference to Commission decisions.
| However, both Courts [are] sensitive [to] the principle that the degree of deference to be accorded to particular and specific Commission decisions will depend upon the circumstances, and, in particular, upon the nature of the decision taken and the statutory context. [Brine v. Canada (Attorney General)(1999), 175 F.T.R. 1 (T.D.)] |
[31] The usual decision of precedence with regard to the CHRC is that of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, wherein it was held that human rights commissions should be afforded considerable deference in their findings of fact. However, because the particular issues brought forward in this case contend an error of law and/or jurisdiction, the jurisprudence contends that while "the standard of review for findings of fact is reasonableness ... findings of law will be reviewed on a correctness standard" [Singh v. Canada (Statistics Canada), [2000] F.C.J. No. 417 (T.D.)]. Moreover, "based on [Mossop], the Tribunal does not enjoy deference when interpreting human rights legislation - correctness is the standard," therefore the Commission should not take note of Green v. Canada (Public Service Commission) (2000), 1 C.C.E.L. (3d) 1 (T.D.).
[32] On the issue of whether deference is owed to the Commission, the Court in Galuego v. Canada(Canadian Human Rights Commission) (re Canada (Statistics)), [1997] F.C.J. No. 986 (T.D.) states:
| It has long been held that in judicial review applications involving a not highly-specialized tribunal, i.e. the Canadian Human Rights Commission, the standard of review is correctness ... Curial deference is only accorded to highly specialized boards and tribunals. In this matter the Commission's decision must be correct in fact and law. |
[33] Although it is not a main point of argument, it should be noted that the decision to dismiss the applicant's complaint was also based on section 41(c) of the Act. With regard to a decision such as this, Justice Lemieux states:
| Such an analysis, in my view, points to granting less deference to a Commission decision made under section 41 of the Act not to investigate a complaint as contrasted with the larger degree of deference when the Commission decides, after investigation and a consideration of submissions by the affected parties, to dismiss a complaint under section 44 of the Act or to request the constitution of a Human Rights Tribunal to inquire into a complaint which may grant appropriate remedies. [Brine v. Canada (Attorney General) (1999), 175 F.T.R. 1 (T.D.)] |
ANALYSIS
[34] The letter sent on April 23, 1999, from the Commission to the applicant, Ms. Gee, clearly states:
| The Commission further decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, that no further proceedings are warranted in view of the agreement reached between the parties. |
| With respect to your complaint P48427, the Commission decided, pursuant to paragraph 41(c) of the Canadian Human Rights Act, not to deal with the complaint because the complaint is beyond the jurisdiction of the Commission in that it is not based upon a proscribed ground of discrimination pursuant to section 3 of the Act. (Respondent's record, p. 073) |
This letter does not indicate the consideration of other evidence in the determination to dismiss, nor does it state a finding of fact as the basis for the decision. In rendering a decision pursuant to both section 41(c) and subsection 44(3)(b)(i), the Commission has relied on a finding of law which it does not have the expertise to make, and the decision, therefore, is subject to the standard of review - correctness - wherein no deference is owed.
[35] In finding that the Agreement is a relevant consideration, the Commission has ignored a stream of jurisprudence, much of which has emanated from the Supreme Court of Canada, in which it has clearly been expressed that human rights legislation is public policy out of which one cannot contract. Moreover, the Courts have gone so far as to say that private parties are not competent to contract out of such provisions.
[36] It is also possible to argue that the Agreement was not honoured by the respondent, and, therefore, is not a valid consideration in evidence. Not only was the applicant asked to sign the Agreement without the benefit of independent legal counsel, consulting counsel was not even an option recommended to her. She was not fully informed by the respondent as to what rights she was ostensibly releasing and she was not informed of the consequences which ultimately arose out of the staffing appeals. Moreover, the respondent did not defend her position as agreed, and the Agreement, intended to benefit the applicant, subsequently placed her in a position worse than the one in which she started. This is not performance of a settlement agreement. By dismissing her claim on the basis of the Agreement, the CHRC has effectively removed the possibility that the applicant may seek redress for her complaint by way of those remedies which had been previously available. In a situation such as this, all other potential remedies no longer exist once a dismissal from the Commission has been rendered.
[37] In considering not only the existence of the Agreement but its contents as well, the Commission made a determination on its validity and enforceability. The respondent's own counsel argued that, in the circumstances, an inquiry was not warranted because of the Agreement. In none of the submissions, written or oral, was it ever contended that other evidence assisted the Commission in coming to this decision. Thus, the Commission made a determination of law which would regularly have been left for the tribunal, and one which the Commission is not competent to make. By asserting that the Agreement is valid and enforceable the Commission addressed a question of law beyond its jurisdiction, and answered incorrectly.
[38] Furthermore, since nothing in the letter of dismissal from the Commission indicates that other evidence was considered or was pivotal in arriving at the decision, the documentation supports the contention that once the Agreement was made determinative, the remaining evidence was not carefully scrutinized in light of all the circumstances. Such a failure to exercise the mandate of the Commission is indicative of a reviewable error. As was noted by Mr. Justice La Forest in Cooper v. Canada (Canadian Human Rights Commission)2, (p. 891):
| It is not the job of the Commission to determine if the complaint is made out. Rather, its duty is to decide if, under the provision of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it. |
Failure to do so is in direct contradiction to the stated mandate for the existence of the Commission3.
[39] Despite the myriad of jurisprudence presented by the respondent's counsel on the issue of deference, it must be noted that they all state when the courts should not interfere with an exercise of discretion. However, even [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. concedes that such an interference should be imposed when, in the exercise of that discretion, reliance is placed upon "considerations irrelevant or extraneous to the statutory purpose ... ." No greater irrelevant or extraneous consideration could have been relied upon than an agreement which should not, and legally cannot, exist.
CONCLUSION
[40] The application for judicial review is allowed, with costs as stated.
Judge
__________________
1 Also indexed as Cooper v. Canada (HRC) [1996] 3 S.C.R. 854, hereinafter referred to as Bell.
2 Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854 at 891.
3 Footnote 1 supra .
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