Date: 20000406
Docket: T-2427-98
BETWEEN:
CANADA POST CORPORATION
Applicant
- and -
ATTORNEY GENERAL OF CANADA
and
OLIVIA BANKS
Respondents
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] The applicant seeks an Order that the decision of the Canadian Human Rights Commission dated November 20,1998 with respect to complaint no. W464568 be quashed, with a direction to the Commission to decline jurisdiction pursuant to paragraph 41(1)(a) of the Canadian Human Rights Act1 (theAct).
[2] The respondent, Olivia Banks was employed by the applicant as a letter carrier from September 1987 until her release from employment due to incapacity on August 31,1997.
[3] The respondent Bank"s employment was subject to a collective agreement between the applicant and the Canadian Union of Postal Workers (the "Union").
[4] Due to an injury to her left hip, the respondent, Banks, was unable to work as of about April 1997.
[5] According to the applicant, on July 15, 1997, the respondent Banks was notified by letter from the manager of Canada Post"s central zone that she was to be released from her employment for incapacity pursuant to Article 10.10 of the Collective Agreement.
[6] On July 27, 1997, Dr. Schamberger, the respondent"s specialist, provided her with a letter and an Occupational Fitness Assessment form where he indicated that she would not be fit to return to her job or other employment for the next twelve (12) to eighteen (18) months.
[7] On August 6,1997, the Union filed a grievance on behalf of the respondent Banks alleging that the applicant violated Articles 5,10,10.10, 20, and other relevant provisions of the Collective Agreement when it released the respondent from her employment.
[8] Pursuant to Article 10.10(b) of the Collective Agreement, the respondent Banks remained employed with the applicant after her release date of August 31,1997, and her employment was to be continued until an arbitrator could hear the filed grievance.
[9] According to the respondent Banks, she was advised by union representatives that her chances of successful arbitration would depend on early work and near perfect attendance. Given that she had been unable to attend work on a regular basis at that time, and that successful arbitration would thus be unlikely, she withdrew her grievance on September 30, 1997.
[10] The respondent Banks alleges that she was also experiencing financial hardship, and needed access to any available income, including severance payments and superannuation. To access these funds therefore, she withdrew her grievance.
[11] On January 5, 1998, the respondent Banks filed a complaint with the Canada Labour Relations Board alleging unfair representation on the part of the Union.
[12] On December 16, 1997, the respondent Banks filed a complaint at the Canadian Human Rights Commission.
[13] On or around February 27,1998, the respondent Banks withdrew her complaint against the Union with the Canada Labour Relations Board.
[14] On March 28, 1998, Nicole Kean, manager for human rights for the applicant, wrote a letter to the Commission advising that the respondent had abandoned the grievance procedures under the Collective Agreement as well as her complaint with the Canada Labour Relations Board.
[15] On May 28 and October 20, 1998, Nicole Kean wrote two more letters to the Commission requesting that it decline jurisdiction to hear the complaint filed by the respondent Banks.
[16] On November 20, 1998, the Commission rendered a decision assuming jurisdiction to hear the complaint filed by the respondent Banks. The reasons for the decision read as follows:
| Pursuant to paragraph 41(a) of the Canadian Human Rights Act, the Commission has resolved to deal with the complaint because: |
| the complainant withdrew her grievance because her union led her to believe it would not be able to have her reinstated, and because she needed the money available through severance and pension contributions, which would have been withheld pending the resolution of the grievance process; |
| there is no other redress mechanism relating to discrimination available to the complainant at this time; |
| as the complainant did pursue alternate redress until October 1997, documentation would have been retained and there should be no prejudice to the respondent.2 |
[17] The issue raised by this application for judicial review is whether or not the Commission committed a reviewable error in deciding to deal with Olivia Banks" complaint against the applicant pursuant to paragraph 41(1)a) of the Act.
ANALYSIS
[18] Paragraph 41(1)a) of theAct reads as follows:
| 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; [emphasis added] |
|
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; |
|
[19] As noted by Evans J. in Canada Post Corporation v. Barrette3 the discretionary nature of the Commission"s power is evident by the language of the provision:
| The language of section 41 confirms that the Court should not subject to close scrutiny the Commission"s decision to deal with a complaint. Subject to section 40, which is not relevant here, the section 41 of the CHRA provides that "the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that "it falls within one or more of five listed categories.4 |
[20] Moreover, he notes that the Commission has a prima facie duty to deal with a complaint and underscores the fact that "it has a discretion to deal with a complaint to which one of the paragraphs of section 41 applies, and that whether a complaint falls within one of those exceptions is left to the Commission to decide".5
[21] Based on all the material which was before the Commission for its consideration including, inter alia the submissions from the applicant dated March 19, 1998,6 May 28, 19987 and October 20, 1998,8 a section 40/41 Analysis Report,9 as well as submissions from the respondent Banks,10 the Commission concluded that it would deal with respondent"s Banks complaint. It is important to emphasize that this is only at the preliminary stage. The investigation has not yet been carried out. Further, as noted by Rothstein J. in Canada Post Corporation v. Canada (Canadian Human Rights Commission) (re: Canadian Postmasters and Assistants Association)11 "the Commission should only decide not to deal with a complaint at this stage in plain and obvious cases".12
[22] It may happen that some of the facts given to the Commission by a complainant were not entirely accurate but this, in my opinion, will be properly assessed at the investigation stage. Again, inCanada Post Corporation v. Canadian Human Rights Commission and Canadian Postmasters and Assistants Association this Court noted the narrow of judicial review applicable in respect to the statutory discretion afforded to the Commission under s.41 of the Act:
| The decision is one for the Commission and the determination is set forth in subjective and not objective terms. Thus the scope for judicial review of such a decision is narrow. Only considerations such as bad faith by the Commission, error of law or acting on the basis of irrelevant considerations are applicable. |
| I think it follows that if substantial deference by the court is applicable when questions of jurisdiction are at issue, at least the same degree of deference if not more, would be applicable to other types of decisions under s. 41 e.g., discretionary, factual or even mixed fact and law decisions.13 |
[23] Therefore, in light of the discretionary nature of a decision under section 41 of the Act, I am satisfied that the Commission based its decision on all relevant considerations.
[24] In addition, given that the purpose and nature of the resolution of a human rights complaint,14 I am of the view that the Commission did not base its" decision on an erroneous finding of fact when it held that there was no other mechanism relating to discrimination available to the respondent Banks.
[25] The applicant also submits that the Commission failed to exercise its discretion in a reasonable manner in that it interpreted paragraph 41(1)(a) of the Act in a manner which robs subsection 42(2)15 of all meaning. In my opinion, a reading of subsection 42(1) of theAct reveals that subsection 42(2)is applicable in the event that the Commission decides not to deal with a complaint. Indeed, since this is not the case at bar, I reject the argument advanced by the applicant.
[26] Lastly, contrary to the applicant"s submissions, I am satisfied that the Commission did not breach any principles of procedural fairness.
[27] As stated above, a decision under section 41 of the Act, is made at an early stage of the process, and as a consequence the duties of procedural fairness require that the Commission inform the parties of the substance of the evidence obtained and give them the opportunity to respond to the evidence.
[28] Considering that all parties were advised of the Section 40/41 Analysis Report completed by the Commission and that submissions were made by the applicant,16 I am of the opinion that the process was indeed fair.
[29] For the foregoing reasons, the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
April 6, 2000.
__________________
1 R.S.C. H-6.
2 Applicant "s Record at page 30.
3 [1999] 2 F.C. 250.
4 Ibid. at para 27.
5 Ibid. at para.28.
6 Motion Record of the Canadian Human Rights Commission at 17.
7 Motion Record of the Canadian Human Rights Commission at 19-21.
8 Motion Record of the Canadian Human Rights Commission at 14-16.
9 Motion Record of the Canadian Human Rights Commission at 6.
10 Motion Record of the Canadian Human Rights Commission at 8-10.
11 (1997) 130 F.T.R. 241; aff"d (1999) 245 N.R. 397 (F.C.A.).
12 Ibid. at page 243.
13 Ibid. at page 244.
14 British Columbia v. Tozer (1998), 33 C.H.R.R. D/327.
15 Section 42(2) of the Act reads as follows:
Before deciding that a complaint will not be dealt with because a procedure referred to in paragraph 41(a) has not been exhausted, the Commission shall satisfy itself that the failure to exhaust the procedure was attributable to the complainant and not to another.
16 Supra note 9.
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