Date: 19990610
Docket: T-2297-96
Between :
CANADIAN BROADCASTING CORPORATION
Applicant
- and -
COLLEEN GRAHAM
Respondent
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review of the decision of the Canadian Human Rights Commission (the "Commission") dated September 20, 1996 to extend the time limit for the bringing of complaints of Colleen Graham, dated February 19, 1996 in the Commission's files Nos. W10549 and W10554. The applicant, the Canadian Broadcasting Corporation (the "C.B.C.") asks for an order in the nature of certiorari quashing the decision and also an order in the nature of prohibition prohibiting the Commission from taking any further action in respect of the complaints.
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[2] On February 19, 1996, Ms. Graham, a casual camera operator for the C.B.C., signed and filed two complaints with the Commission: 1) a complaint alleging that she had been discriminated against by the C.B.C. in respect of her wages on the ground of sex; the "Date of Alleged Conduct" is stated to be December 15, 1993 in the complaint form; and 2) a complaint alleging that the C.B.C. "has a policy or practice of discriminating against women on the ground of sex by paying female camera operators at a lower rate of pay than male camera operators"; the "Date of Alleged Conduct" in this complaint is also stated to be December 15, 1993.
[3] In a letter dated February 14, 1996, the Commission wrote to Ms. Graham and informed her of the following procedures:
| You will note that the alleged discriminatory act cited in the section 7 complaint occurred more than one year before the Commission received the complaint. Based on the information at hand, we intend to proceed with the investigation despite the time which has passed since the alleged discriminatory acts occurred. |
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| If the respondent objects to the administrative extension of time for this complaint, we will be required to prepare a report to the Commission for a formal decision on the timeliness issue before the investigation can commence. |
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[4] The C.B.C. alleges that it was never approached until April 25, 1996, at which time the Commission made no mention of the fact that the complaint was out of time. However, the evidence shows that the C.B.C., in its reply letter dated June 4, 1996, not only denied having discriminated against Ms. Graham in any manner due to her sex, but also objected to the untimeliness of the complaint, writing: ". . . the complainant cannot bring a complaint which is manifestly untimely on its face".
[5] In its subsequent letter of June 14, 1996, the Commission indicated to the C.B.C. that the Sections 40/41 analysis, copies of which were enclosed, had been made and that the Commission would take them into account, along with any representations to be made by the C.B.C., in coming to a decision concerning the extension of time. The C.B.C. took advantage of the offer and submitted written representations in a letter to the Commission dated July 9, 1996. Finally, in its letter dated September 20, 1996 to the C.B.C., the Commission decided as follows:
| The Canadian Human Rights Commission has reviewed the complaints (W10549) and (W10554) of Colleen Graham against Canadian Broadcasting Corporation, both dated February 19, 1996, alleging discrimination in employment on the ground of sex. The Commission also reviewed your submission dated July 9, 1996. |
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| The Commission has decided to exercise its discretionary power to extend the time limit within which the complaints may be filed. The Commission has therefore decided, pursuant to paragraph 41(e) of the Canadian Human Rights Act, to deal with the complaints even though the act complained of occurred more than one year before the receipt of the complaints by the Commission. |
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| The officer designated to investigate the complaints will contact you to discuss the matter further. |
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[6] The C.B.C. essentially argues that the Commission did not properly exercise its authority under paragraph 41(e) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, (the "Act") which reads:
| 41. 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. |
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41. 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. |
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[7] Because the C.B.C. was not made aware of the timeliness issue by the Commission before the Sections 40/41 analysis was undertaken, because the Commission's letter dated February 14, 1996 states an intention "to proceed with the investigation despite the time which has passed since the alleged discriminatory acts occurred", and because the analysis reports do not mention that Ms. Graham, in her explanations for the delay, had indicated that she did not want to "rock the boat", the C.B.C. submits that the Commission breached its duty of procedural fairness, gave rise to a reasonable apprehension of bias and extended the one-year time limitation by an additional fourteen months in the absence of any reasonable grounds for so doing.
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[8] As noted by my colleague MacKay J. in Cape Breton Development Corporation v. David Hynes and Canadian Human Rights Commission (March 15, 1999), T-103-97, at pages 5 and 6, decisions of the Commission under paragraph 41(e) of the Act are discretionary administrative decisions:
| It is well settled, as all parties agree, that decisions of the Commission under paragraph 41(e) are discretionary administrative decisions.2 Decisions of that nature are not readily set aside, and courts will not interfere, even if they might have exercised the discretion differently, where the discretion has been exercised in good faith, in accord with the principle of natural justice and procedural fairness, and where reliance has not been placed on considerations that are irrelevant or extraneous to the statutory purpose.3 |
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| 2 Canada (Attorney General) v. Canadian Human Rights Commission and Boone (1993), 60 F.T.R. 142 at 153-156; Canada (Attorney General) v. Merrick, [1996] 1 F.C. 704 at 712-713, 105 F.T.R. 1 at 5-6 (F.C.T.D.). |
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| 3[1982] 2 S.C.R. 2"> Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7-8; Canada Post Corp. v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241 at 244. |
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[9] Moreover, the Court ought not to interfere with the Commission's exercise of discretion under paragraph 41(e) of the Act unless it is satisfied that the exercise was patently unreasonable. In that regard, I fully agree with the comments made by my colleague Evans J. in Canada Post Corporation v. André Barrette and The Canadian Human Rights Commission and Canada Post Corporation v. Murray Nolan and The Canadian Human Rights Commission (December 16, 1998), T-1373-97 and T-1375-97, at pages 12 to 14, where, similarly in the case at bar, the employer was suggesting that there is an onus on the Commission to justify its exercise of discretion to remove a statutory right:
| I am unable to accept that this is an appropriate approach to section 41. For one thing, as I have noted, the section is drafted in a way that leaves many issues to the discretion or judgment of the Commission: this is incompatible with the notion that it should be interpreted as if it created a legal right not to be investigated in specified circumstances. The Commission still has a discretion to deal with the complaint if it so chooses. While individuals against whom complaints are made undoubtedly benefit from the existence of the exceptions in section 41, the exceptions may also be regarded as inserted to enable the Commission to allocate its limited resources in an appropriate manner. |
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| Paragraph 41(e) exempts the Commission from the duty to investigate a complaint that was made more than a year after the last incident complained of, "or such longer period of time as the Commission considers appropriate in the circumstances". Given that the purpose of the Act is to advance the value of equality, the Court should only be prepared to set aside a decision by the Commission to proceed with a complaint under this paragraph if satisfied that the Commission manifestly refused to exercise its discretion, or its exercise was patently unreasonable because, for example, it was based on considerations that bore no rational relationship to the reasons for the grant of the discretion or overlooked matters that it equally obviously ought to have considered, or it gave unreasonably little weight to some factors and far too much weight to others. |
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[10] In the case at bar, I find it was sufficient for the Commission to provide the C.B.C. with copies of the Sections 40/41 analysis, which deals with the timeliness issue, and to give the C.B.C. the opportunity to send written comments before the September 20, 1996 impugned decision. There was no requirement in the Act to allow the C.B.C. to make representations prior to the Sections 40/41 analysis and, furthermore, the C.B.C. adduced no evidence of prejudice other than mere inconvenience resulting from the fourteen-month delay in preparing its response to Ms. Graham's complaints. Even though the Commission indicated in its letter dated February 14, 1996 that it intended to proceed with the investigation despite the time which had passed, the same letter also made it clear that if the respondent objected, a report would be prepared for a formal decision on the timeliness issue before the investigation could commence. Under such circumstances, I fail to see any procedural unfairness vis-à-vis the C.B.C.
[11] The failure by the Commission to mention in the Sections 40/41 analysis reports that Ms. Graham had indicated, as a reason for the delay, that she did not want to "rock the boat" is certainly not sufficient to allow a reasonably informed bystander to perceive bias on the part of the Commission, given that other more serious reasons for the delay are stated in the analysis reports (see [1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369). In Commission file No. W10549, the analysis report includes the following:
| 3. The alleged discrimination began in March 1993. The respondent hired the complainant as a freelance camera operator. She alleges she found out in November 1993 she was being paid less than male colleagues. She alleges she complained to the respondent in December 1993 and subsequently was only called once for work in the summer of 1995. She alleges she is currently subject to ongoing discrimination because the respondent has blacklisted her for complaining about the wage rates. |
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| 4. The complainant states she did not contact the Commission before February 1, 1996 for two reasons. She was waiting for the respondent to call her for further work and it was only in the summer of 1995 that she began to suspect the respondent had blacklisted her for complaining. Secondly, she did not realize that as a freelancer she was covered by the Act until a friend advised her to contact the Commission. |
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| 5. Investigation of this complaint should not prejudice the respondent as documentary evidence should still be available. As well, in December 1993 the complainant attempted to resolve the alleged different pay levels for male and female camera operators with the respondent but received no response. The complainant alleges she has suffered personally by: (a) being paid less than male camera operators for the same work, and (b) being denied potential employment with the respondent because she has been blacklisted by the respondent for complaining about discriminatory pay rates. |
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| 6. As the alleged discrimination is ongoing, it is recommended that the Commission decide to deal with the complaint. |
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[12] In Commission file No. W10554, the analysis report includes the following:
| 3. The alleged discrimination is ongoing. In March 1993 the respondent hired the complainant as a freelance camera operator. She alleges she was paid less than male camera operators. In the summer of 1995 two female camera operators confirmed to the complainant that they received the same rate of pay as she had. She alleges the respondent has an ongoing policy or practice of paying females less than males for the same work. |
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| 4. The complainant states she did not contact the Commission before February 1, 1996 for two reasons. She was waiting for the respondent to call her for further work and it was only in the summer of 1995, after speaking with female camera operators, that she began to suspect the respondent has a policy or practice of paying females less than males. Secondly, she did not realize that as a freelancer she was covered by the Act until a friend advised her to contact the Commission. |
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| 5. Investigation of this complaint should not prejudice the respondent as documentary evidence should still be available on hourly wages paid to female and male camera operators. As well, in December 1993 the complainant attempted to resolve the alleged different pay levels for male and female camera operators with the respondent but received no response. The complainant alleges she has suffered personally by being paid less than male camera operators for the same work. |
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[13] Finally, with respect to the applicant's alternative argument based on the absence of any reasonable grounds for extending the one-year time limitation for the bringing of the complaints, I find, without prejudging the merits of the complaints, that it is also without merit, given the above allegations which are stated in the analysis reports and which I consider to be sufficiently serious to prevent this Court from concluding that it was not reasonable for the Commission to exercise its discretion as it did.
[14] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
June 10, 1999
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