Tiwana v. Canada (Human Rights Commission), docket T-60-00

Date: 20001129

Docket: T-60-00

Ottawa, Ontario, this 29^th day of November 2000

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

G.S. (DAVE) TIWANA

Applicant

- and -

CANADIAN HUMAN RIGHTS COMMISSION

AND THE ATTORNEY GENERAL OF CANADA

Respondents

REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]      G.S. (Dave) Tiwana was employed by the Department of Indian and Northern Affairs for over 24 years. As a result of departmental reorganization, he was declared surplus not once but twice. He and the Department engaged in the processes which are laid out in Workforce Adjustment Directive but for various reasons, no suitable position could be found for him. Finally, on or about January 13, 1995, under the threat of lay-off, Mr. Tiwana signed a Special Assignment Pay Plan ("SAPP"), the effect of which was to keep him on staff at his current wage level for two years, at which time he would be eligible for retirement. The SAPP agreement provided that "Upon termination of assignment(s), the employee will retire from the Public Service effective March 31, 1997 and concurs by signing." When the term of the SAPP expired, Mr. Tiwana was treated as having resigned from the public service.

[2]      Mr. Tiwana, however, did not feel he had been treated fairly. On August 21, 1997, he wrote to the Edmonton office of the Canadian Human Rights Commission ("CHRC") to complain about his retirement. Mr. Tiwana is a voluminous correspondent but in its operative portions, his letter read as follows:

"Enclosed are documents for your information and record purposes. I wish to file a complaint with the Human Rights Commission on the following basis:

1. Forced retirement - age discrimination. I am now 59 years old.

2. Assuming race discrimination      ..."

[3]      This was followed by 24 point form items which raised matters of varying relevance to the substance of Mr. Tiwana's complaint. The CHRC responded by advising Mr. Tiwana that Ms. Catherine Craig had been appointed to investigate the complaint and would be in touch with him about the complaint. After discussion with Mr. Tiwana, Ms. Craig prepared a complaint on the form used for that purpose by the CHRC and submitted it to Mr. Tiwana who signed it on November 19, 1997. The form provided as follows:

ALLEGATION

The Department of Indian Affairs and Northern Development (DIAND) has discriminated against me by failing to continue to employ me because of my age, contrary to section 7 of the Canadian Human Rights Act;

PARTICULARS

I am 59 years of age and have been employed by DIAND for many years. On 19 January, 1994, I was declared surplus; however, my job functions remained and were distributed to two other younger employees.

On 22 December 1994, I received a letter from the Regional Director General (Alberta Region) stating that if I did not accept a two-year pre-retirement agreement SAPP (Special Assignment Pay Plan) I would be laid off. Although I did sign the SAPP agreement on 6 January 1995, I did so under duress as I was given no choice. If I had not signed the document, I would have lost my job.

DIAND made no effort to find me another position and, contrary to the Work Force Adjustment Directive, no reasonable offer was made to me. Although I never resigned, I was forced to leave DIAND (and ceased to be a Public Service Employee) on 30 March 1997.

Younger employees were not treated in this manner, and I allege I was forced to retire because of my age.

[4]      One notices that the complaint, unlike the letter which initiated the process, did not refer to discrimination on the basis of race or colour. In his Supplemental Affidavit, Mr. Tiwana says he signed the complaint on the strength of assurances that if any form of discrimination was found, his rights would be protected. However by February 19, 1999, Mr. Tiwana was no longer sure that this was the case and wrote to Ms. Craig indicating his belief that his complaint extended to all forms of discrimination and seeking assurances that his rights would be protected:

Further to my telephone call on February 19, 1999, I got the distinct impression that case is only investigated based upon the age discrimination. Due to our earlier discussion, I thought investigation has been broaden due to my submission on May 20, 1998 to your office.

The first paragraph states that I have been discriminated. This includes all types of discrimination based on color, ethnicity and age. And documented proof is there. And also the age discrimination gives rise to other types of discrimination....

Catherine, my submission clearly states discrimination (color, ethnicity, age, etc) and I want to be assured that my rights are protected.

[5]      On March 19, 1999, Mr. Tiwana wrote to Ms. Craig once again, as follows:

Further to my letter of February 19, 1999, I request amendment to my original submission to the Human Rights Commission to include racial and colour discrimination. As a result of discussions with you and the items I have outlined in my letter of February 19th, I am convinced now that I have been discriminated on racial and colour grounds as well. It became clear to me as the investigation brought these items to my attention. And there is a lot of evidence of this on the file.

I request amendment to the original form to include age, color and racial discrimination by the Department.

[6]      Ms. Craig replied by letter date March 31, 1999, which said:

This is further to our telephone conversation yesterday regarding your request to amend your complaint to include the grounds of colour and national/ethnic origin. During the drafting of your complaint, I recall discussing with you whether "colour" and "national/ethnic origin" should be included, and you indicated that the alleged discrimination was based only on age.

You have the option of filing a new complaint based on alleged discriminatory practices by DIAND based on your colour and national/ethnic origin. To do so, you should provide examples of specific incidents of discriminatory behaviour based on these new grounds, as well as supporting documentation, since neither Ken Bass nor I could find evidence of these in your current file.

Please note that the alleged discriminatory act(s) took place more than two years ago, which raises the issue of timeliness. Therefore, once the complaint form is signed, a report will be prepared for the Commission recommending that they not deal with the complaint pursuant to Section 41(d) of the Canadian Human Rights Act. You will be given an opportunity of reviewing this report and submitting comments on its contents to the Commission.

[7]      Not suprisingly, Mr. Tiwana did not submit a fresh complaint. Instead he renewed his efforts to have his complaint amended. On April 9, 1999, he wrote to Ms. Craig again giving examples which he said amounted to discrimination. He concluded by saying:

... Discrimination means age, racial and color discrimination. I strongly object and appeal you proceeding without amendment of the complaint in view of the above noted information. No justice without amendment. I incorporate all correspondence submitted earlier in this response. Thank you for your reconsideration.

[8]      In all subsequent correspondence with the CHRC, Mr. Tiwana objected to the CHRC's refusal to amend his complaint to include colour and national/ethnic origin.

[9]      On or about November 17, 1999, Ms. Craig concluded her investigative report which was quite lengthy, and carefully reviewed the evidence of Mr. Tiwana's dealings with DIAND. Ms. Craig's conclusion was that:

Evidence shows that the complainant was not singled out by the respondent but was declared surplus as part of an extensive reorganization. Decisions made by the complainant (refusing a term position, rejecting the early involvement of the PSC [Public Service Commission] and declining to be interviewed for a non-education job) significantly limited the respondent's ability to find him another position, and was one reason it arranged for a pre-retirement SAPP. Although the respondent did advise the complainant that he faced possible layoff if he did not sign the SAPP agreement, there is no evidence this was motivated by age discrimination.

[10]      Ms. Craig recommended that the complaint be rejected as unfounded. The investigative report was circulated to Mr. Tiwana and to DIAND who both responded to it. The first item in Mr. Tiwana's response dated October 10, 1999 was a reference to amendment of the complaint:

Objection: Original complaint has been amended to include race and color discrimination:

EXHIBITS: 1. Letter from Tiwana to Craig dated April 9, 1999

             2. Letter from Tiwana to Craig dated February 19, 1999

             3. Letter from Tiwana to Craig dated March 19, 1999

[11]      On October 29, 1999, DIAND's representative Ms. Brenda Cooper provided DIAND's response to the investigative report. The letter begins as follows:

A copy of your report was received October 7, 1999 in our headquarters office. The Region agrees, for the most part, with the report and with the recommendation made by Ms. Craig.

[12]      DIAND's comments were then circulated to Mr. Tiwana who responded to them in a letter to CHRC dated November 5, 1999 which specifically addressed each of the points raised by DIAND.

[13]      On January 5, 2000, the CHRC wrote to Mr. Tiwana and to DIAND to advise that the complaint had been dismissed because:

the evidence does not support that the respondent discriminated against the complainant because of his age:

the evidence supports that the complainant's position was surplused after a departmental re-organization. Subsequent difficulty in finding the complainant another position was unrelated to the complainant's allegations of age discrimination by the respondent.

     [italics in the original]

[14]      In purported compliance with Rule 317¹ of the Federal Court Rules, 1998, an officer of the CHRC purported to certify the record which was before the CHRC when it made its decision. Among the documents so certified, is a note, authorship unknown, which addresses the question of the amendment of the complaint:

The complainant alleges that the respondent refused to continue to employ him because of his age.

Both parties provided submissions to the investigative report. The submissions were cross disclosed and both parties provided comments.

In his initial submission, the complainant indicates that the original complaint has been amended to include race and color discrimination.

Earlier this year, the complainant requested that his complaint be amended to include race and colour discrimination. He was advised that although the complaint could not be amended, he had the option of filing a new complaint. The complainant was requested to provide information related to allegations of discrimination based on grounds of race and colour. When the complainant failed to provide the requested information, the matter of a new complaint was not pursued.

[15]      On January 17, 2000, Mr. Tiwana, acting on his own behalf, commenced a judicial review application which is said to be in respect of a decision the Canadian Human Rights Commission dated January 5, 2000. The relief sought is the following:

     1- Order amendment to the original complaint;

     2- Declare invalid a decision of January 5, 2000;

3- Order recommendations accepted by the Department are made available to the Applicant;

     4- Costs of this application;

     5- Such further and other relief as this Honourable Court deems just;

[16]      Mr. Tiwana prepared and filed his application record which consisted largely of documents which supported his view of the merits of the application before the CHRC. In his "Memorandum of Points", Mr. Tiwana raises the point that the amendment to the complaint should be allowed to "properly address discrimination, which I have been subjected to for several years by my employer".

[17]      At the hearing of this matter, counsel for the applicant conceded that there is no basis for a challenge of the decision with respect to age discrimination. She acknowledged that if the CHRC's decision is to be challenged, it must be on the basis that the Commission did not properly deal with the applicant's complaint about race discrimination.

[18]      The issues thus become:

-      did Mr. Tiwana make a complaint about race discrimination, and if so, was the complaint abandonned?

-      if not, did the commission deal with it?

-      if not, was it not proceeded with for a ground set out in section 41 of the Canadian Human Rights Act (the "Act")?

-      if so, was Mr. Tiwana given written reasons as required by section 42 of the Act?

[19]      These substantive issues are anchored in the following procedural issues:

-      what is the decision under review?

-      was the application brought in a timely fashion?

-      if necessary, should any remedial measures be applied?

Did Mr. Tiwana make a complaint about race discrimination, and if so, was the complaint abandonned?

[20]      In his original letter of August 21, 1997, Mr. Tiwana raised race discrimination but in an oblique way. He made a specific allegation about age discrimination and then added "assuming race discrimination". In the normal course of events, it would have been for the investigator to explore this and to get from Mr. Tiwana the particulars of that discrimination, much as she did with his allegations of age discrimination. Given the investigator's letter of March 31, 1997, there is reason to assume that this was done since she refers to having discussed the issue with him: "During the drafting of your complaint, I recall discussing with you whether "colour" and "national/ethnic origin" should be included, and you indicated that the alleged discrimination was based only on age."

[21]      There is no affidavit from the investigator before the Court so that one is left with the statement quoted above, to which the applicant's response is equivocal. In his supplementary affidavit, he says that he signed the complaint form "on the understanding that if the investigator found any type of discrimination, the Commission would be prepared to take action". He also says that it was always his understanding that discrimination included all of the grounds enumerated in section 7 of the Act. While both of these are undoubtedly true, they are not inconsistent with the statement contained in the letter of March 31, 1997 that the only discrimination which he felt he had experienced was age discrimination.

[22]      However, in his letter of April 9, 1999 responding to the March 31, 1999 letter, Mr. Tiwana puts the matter slightly differently. His first point of objection to the position taken by the investigator is:

1.      I have said that I am not sure of "discrimination at this time" during our discussion. And you never advised me that the complaint cannot be amended in the future or the statute of limitations.

[23]      He then points out a number of incidents which he says are evidence of race discrimination and says:

     ... As a result of your investigation, above items were brought to my attention.

[24]      The impression conveyed is that while Mr. Tiwana had no subjective experience of race discrimination at the time of signing his complaint, as a result of the investigation, he became aware of grounds which he believed would support such a complaint. This would explain why race discrimination, which was dropped from the complaint in November 1997, does not arise as an issue until February 1999.

[25]      Accepting Mr. Tiwana's affidavit evidence at face value, there is room to believe that at the time he signed the complaint, he did not believe he had been discriminated against on the basis of race and was prepared to have the investigation go forward on the basis of age discrimination. To that extent, it is my view that it can be said that the race discrimination complaint was abandoned at the time of signing the formal complaint.

[26]      But abandonment is not irrevocable, a fact which was recognized by the investigator when she invited Mr. Tiwana to make a fresh complaint. However, because of the investigator's remarks about the application of the two year time limit, no complaint was made and the issue became one of amendment. From February 1999 forward, Mr. Tiwana consistently maintained the position that he wished race discrimination to be considered as part of his complaint. To that extent, the matter of race discrimination cannot be treated as having been abandoned after February 1999.

Did the commission deal with it?

[27]      The respondent's position is that there was nothing to deal with since Mr. Tiwana never did make a fresh application and therefore there was no complaint before the Commission with respect to which it could make a determination as to whether to proceed or not. But for the references in the letter of March 31, 1999 to the applicability of the two-year limitation period, such an argument would be persuasive. Mr. Tiwana is an individual representing himself. He is told that he is free to make an application but the investigator will recommend to the Commission that it is out of time. He did what any layman (and many lawyers) would do. He attempts to neutralize the limitation argument by saying that the complaint goes back to his original letter and so there is no issue of limitations. The investigator effectively adopts a procedural response by saying that the complaint cannot be amended. The investigation is not broadened to include race discrimination and the investigation report does not deal with the issue of race discrimination. The Commission did not deal with the applicant's complaint.

[28]      The failure to make a fresh complaint cannot be a basis for saying that the issue was not raised with the Commission when the Commission's representative effectively communicated that a fresh application would be rejected. A lawyer may have understood that the investigator was saying she would make a recommendation but that it was for the Commission to decide whether to proceed or not. It would be an unusual layman who would understand the distinction.

[29]      The respondent also points out [at paras. 31 and 32 of Respondent's Memorandum of Fact and Law] that the applicant was asked to provide information relating to his allegations of race and colour discrimination, and that the applicant failed to do so. Again, this must be taken in the context of the Commission indicating that the applicant could not amend his complaint. Having been told that a fresh application would be found to be out of time and that an amendment was not possible, it may not have been obvious to Mr. Tiwana what could be gained by providing information which he believed was already in the Investigator's possession. Furthermore, he did enumerate some of the acts which he thought constituted acts of racial discrimination in his reply to the Investigator's report when it was circulated to the parties.

Was it not proceeded with for a ground set out in section 41?

[30]      Section 41 of the Act provides that the Commission shall deal with any complaint unless it is satisfied that the complaint falls into one of the categories set out in subsections (1)(a) to (e):

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 (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available; (b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act; (c) the complaint is beyond the jurisdiction of the Commission; (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or (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_: a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale; c) la plainte n'est pas de sa compétence; d) la plainte est frivole, vexatoire ou entachée de mauvaise foi; 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.

[31]      If the failure to make a fresh complaint cannot be relied upon as a ground for not dealing with the complaint, the only rationale left is the Commission's position that complaints cannot be amended. The commission's response to Mr. Tiwana's suggestion that the application had been amended makes it clear that Mr. Tiwana was told that complaints cannot be amended. If this is the reason for which the complaint was not dealt with, then it does not meet the requirements of subsection 41(1). Putting the argument in another form, section 41does not authorize the Commission to refuse to deal with a complaint on the ground of procedural irregularity.

[32]      While it is true that there is no explicit statutory recognition of the right to amend a complaint, the Federal Court of Appeal recognized in Bell Canada v. Communications, Energy, and Paperworkers Union of Canada, [1999] 1 F. C. 113 at para. 45 that human rights claims can and, in certain circumstances, ought to be amended:

Where, therefore, an investigator in the course of investigating a complaint is provided with some evidence, not of her making, that there is a possible ground for discrimination which the complaint, as formulated, might not have encompassed, it becomes her duty to examine that evidence . . . and even to suggest that the complaint be amended. To require the investigator in such a case to recommend the dismissal of the complaint for being flawed and to force the filing of a new complaint . . . would serve no practical purpose. It would be tantamount to importing into human rights legislation the type of procedural barriers that the Supreme Court of Canada has urged not to be imported.

[33]      On the basis of the very same logic, and in the absence of a statutory proscription, there is nothing to prevent an amendment being made to a claim at the claimant's request.

    

Was Mr. Tiwana given written reasons as required by section 42?

[34]      To the extent that the Commission might have had other grounds for refusing to deal with the complaint of race discrimination, it is not for the applicant to guess at them. Section 42 provides that where the Commission does not deal with a complaint, it will advise the complainant of its reasons for not doing so:

42. (1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision.

42. (1) Sous réserve du paragraphe (2), la Commission motive par écrit sa décision auprès du plaignant dans les cas où elle décide que la plainte est irrecevable.

[35]      The absence of a complaint is an answer to this reproach, even if the absence is due to the Commission's intervention. Where there is no application, there can be no obligation to respond in writing. The Commission cannot invent a claim for the purpose of rejecting it.

[36]      To summarize the position so far, Mr. Tiwana wished to put before the Commission a complaint of race discrimination in addition to his complaint of age discrimination. That complaint was initially raised in Mr. Tiwana's letter of August 21, 1997 but with Mr. Tiwana's consent, it was not raised in the formal complaint. However, Mr. Tiwana subsequently reasserted his interest in pursuing that complaint. Given the respondent's position on the limitations, he asserted the right to have the matter come forward by way of amendment. The respondent's position that a complaint cannot be amended is not supported by authority. No amendment was made; Mr. Tiwana's complaint about race discrimination as expressed in his letters to the investigator and the Commission following the March 31, 1999 letter has not been dealt with as required by section 41 of the Act.

[37]      I turn now to a consideration of the procedural issues.

What is the decision under review?

[38]      The Notice of Application describes the decision under review as "a decision of the Canadian Human Rights Commission dated January 5, 2000". At the argument of this matter, there was some discussion as to whether the decision under review was not in fact the investigator's refusal to allow Mr. Tiwana to amend his complaint to add race discrimination. However, until such time as the Commission purported to dispose of Mr. Tiwana's complaint, there was no decision with respect to the disposition of the issue of race discrimination. This is so because it was always open to the Commission to send the matter back to the investigator once it became aware of the race discrimination complaint. It is only when the Commission purported to dismiss the complaint that there was a decision of a federal board, commission or tribunal within the meaning of the Federal Court Act, R.S.C. 1985 c. F-7 on this issue. The fact that the decision does not deal with the race discrimination complaint for reasons other than those set out in subsection 41(1) is an error of law, and is grounds for review.

Was the application brought in a timely fashion?

[39]      The decision under review was rendered on January 5, 2000 and the Notice of Application was issued January 17, 2000, well within the 30 days provided for in subsection 18.1(2) of the Federal Court Act. That being the case, the issue of remedial measures does not arise.

Remedy

[40]      Counsel for Mr. Tiwana properly conceded that there was no ground upon which the decision as to age discrimination could be challenged. The only challenge to the decision of January 5, 2000 is its failure to deal with the issue of race discrimination. The proper remedy therefore is not to quash the January 5, 2000 decision but merely to send it back to allow the Commission to deal with the issue of race discrimination. Having regard to the fact that Mr. Tiwana is now represented by counsel, he and his counsel should prepare an amended complaint for the Commission setting out the basis of his allegations of race discrimination. The Commission should then deal with the amendments in accordance with section 41 and, if necessary section 42. For greater certainty, the amendment shall be considered as having been made on February 19, 1999, when Mr. Tiwana first communicated his interest in reviving the race discrimination complaint. The Commission shall then deal with the amended portion of the complaint as required by section 41 of the Act, subject to the possible application of subsections 41(1)(a ) to (e) to the amendment.

ORDER

     The Commission's decision of January 5, 2000 is remitted to the Commission for consideration of an amendment to the complaint to be provided to the Commission by the applicant within 15 days of the date of this order. The amendment shall be deemed to have been made on February 19, 1999 and shall be dealt with by the Commission in accordance with the applicable provisions of the Canadian Human Rights Act.

"J.D. Denis Pelletier"

Judge

__________________

¹      Rule 317 is often taken as calling for production of the tribunal record by the tribunal. It does not do so. It allows the applicant to supplement those documents in his/her hands with those in the possession of the tribunal so as to allow the applicant to put the record before the court. Rule 17 of the Federal Court Immigration Rules is a rule which does call for production of the tribunal record but is obviously of no application here. For a fuller discussion see Tajgardoon v. Canada [2000] F.C.J. No. 1450 para. 6 to 22.