Galuego v. Canada (Human Rights Commission), docket T-2668-95

T-2668-95

BETWEEN:

LEONARDO G. GALUEGO,

Applicant,

- and -

CANADIAN HUMAN RIGHTS COMMISSION and

THE ATTORNEY GENERAL OF CANADA,

Respondents

REASONS FOR ORDER

JEROME A.C.J.:

     This is an application for judicial review of the decision of the Canadian Human Rights Commission ("the Commission") to dismiss the applicant's complaint on the basis that the allegation of discrimination was unfounded. At the hearing of this motion in Toronto, Ontario, on May 6, 1997, I dismissed this application and indicated that these written reasons would follow.

     The applicant and his wife, Rosario Galuego, were employed by Statistics Canada as part-time, evening shift, data capture operators (DACON) in the computer room at Statistics Canada's Toronto office. The applicant, by his own request, is currently on personal needs leave without pay, and has been since October of 1995. In March of 1994 Statistics Canada temporarily suspended its evening shift thereby causing the lay-off of the applicant's wife and three other evening shift employees. At the same time the applicant was offered, accepted and was scheduled for day shift work. Although he accepted the offer, the applicant did not work any of these scheduled day shifts since they conflicted with his day-time employment. After exhausting his paid and unpaid sick leave, the applicant requested a personal needs leave without pay. This leave was precipitated by the stresses associated with the applicant's herein human rights complaint.

     The subject of the applicant's complaint to the Commission was an e-mail memo from Carol Hensley, Assistant Director, Operations, at Statistic Canada. On May 22, 1992, Ms. Hensley wrote a memo addressed to Operations Management stating that both direct and indirect reporting relationships between family members should be avoided if possible. The e-mail specifically addressed issues of influence, evaluation, special permissions, promotion, conditions of work and salary.

     The applicant submitted a complaint to the Commission that the this memo was discriminatory and that he and his wife were both directly affected by the policy stated therein. The Commission determined, after investigating the applicant's complaint, that the applicant was never denied any promotion opportunity because of this alleged policy; that the applicant had never applied for any job competition; and that the he had not succeeded on the Public Service General Proficiency Exam which precludes him from most staffing competitions. The Commission further concluded that the reporting relationship "policy" as stated in the relevant memo was not an official Statistics Canada policy but would be more accurately characterized as an informational note to senior managers making them aware of the issues associated with the staffing of family co-workers. The Commission concluded that the applicant's complaint was unfounded.

     It has long been held that in judicial review applications involving a not highly-specialized tribunal, ie. the Canadian Human Rights Commission, the standard of review is correctness (see Canada (A.G.) v. Mossop, [1993] 1 S.C.R. 554, Pezim v. British Columbia Securities Commission et al., [1994] 2. S.C.R. 557 (S.C.C.), 168 N.R.. 321, 114 D.L.R. (4th) 385, Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 885, Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571). 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.

     Unfortunately for the applicant, the Commission is not only correct in fact and law but it also properly set out all the reasons that are required to support its decision. The applicant was not directly affected by the "policy" because neither he nor his wife ever applied for a promotion. The Commission also found the policy not to be discriminatory because there exists no policy. The Commission found the memo to contain only issues to be considered in conjunction with the prescribed staffing guidelines. The evidence supports this conclusion. The Commission did not commit a reviewable error.

     The applicant has, since the delivery of the oral reasons in this matter, filed a motion under R. 324 of the Federal Court Rules to have me reconsider this decision under R. 327 of these Rules. Specifically R. 327(5) of the Federal Court Rules states:

     The applicant did not satisfy the requirements of R. 327(5) by providing evidence that some important matter was overlooked or accidentally omitted.

     For these reasons, this application for judicial review and the motion for reconsideration are dismissed.

O T T A W A

July 11, 1997                          "James A. Jerome"

                             A.C.J.