Date:
20120713
Docket:
T-1471-11
Citation: 2012 FC 887
Ottawa, Ontario, July 13, 2012
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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DR. PATRICIA CONROY
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Applicant
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and
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THE PROFESSIONAL INSTITUTE OF THE
PUBLIC SERVICE OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
At
all material times, Ms. Patricia Conroy (the applicant) was employed by the
Correctional Service of Canada (CSC) as a unionized psychologist and, as such,
was a member of the Professional Institute of the Public Service of Canada (the
respondent). As of 1995, the applicant encountered various problems in the
advancement of her career within the CSC. For example, she was screened out of
a competition for a permanent PS-04 position in 2001 and she was removed from
an acting PS-04 position in 2005. In 2005 she took medical leave, followed by a
one‑year leave without pay. She alleges that she requested a further
extension of her leave in 2007 but never received a response to that request.
In 2009, she was contacted by the CSC and pressured to return to her
substantive position. She tried to negotiate an accommodation that would allow
her to return to a different position than the one she held in 2005, but to no
avail.
[2]
Throughout
her dealings with her employer, the applicant sought the assistance and support
of her union, the respondent. The applicant claims that on all occasions, in
2001, 2005 and 2010, she received differential representation from the
respondent, based on her gender. In 2010, she filed a complaint with the Canadian
Human Rights Commission (the Commission) against the respondent alleging that it
discriminated against her because of her gender, contrary to sections 9 and 10
of the Canadian Human Rights Act, RSC 1985, c H-6 [the Act]. In
particular, the applicant alleged that, from 2001 to 2010, the respondent failed
to offer her adequate representation and offered much more meaningful
representation to similarly situated male members.
[3]
On
July 20, 2011, the Commission decided, pursuant to section 41 of the Act,
that it would not deal with the applicant’s complaint. This application for
judicial review concerns that decision. For the following reasons, the
application is allowed.
I. History of the proceedings
and decision under review
[4]
The
Commission’s decision was preceded by what is usually called a Section 40/41
Report whereby an agent of the Commission preliminarily assesses the complaint
and the parties’ respective positions. The Section 40/41 Report makes
recommendations on whether the Commission should or should not deal with a
complaint and launch an investigation. In this case, Ms. Jennifer Bouchard
prepared the Section 40/41 Report.
[5]
Section
40 of the Act provides than an individual may file a complaint with the
Commission if he or she has reasonable grounds to believe that a person is
engaging in a discriminatory practice. Section 41 of the Act prescribes
that the Commission must deal with a complaint unless it appears that the
complaint falls within the following exceptions:
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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.
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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.
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[6]
The
respondent raised two preliminary objections to the applicant’s complaint.
First, the respondent claimed that the complaint referred to two separate and
distinct sets of allegations. The first set of allegations referred to events
that occurred between 2001 and 2005, more than one year before the applicant
filed her complaint. The respondent alleged that the Commission should, as a
consequence, refuse to deal with those allegations because the respondent was
prejudiced by the delay in filing and no longer had any evidence to adequately
defend itself. Second, the respondent alleged that the allegations regarding
the 2010 event fell beyond the Commission’s jurisdiction. More specifically,
the respondent alleged that even if the allegation regarding its failure to
offer representation to the applicant in 2010 was taken as true, its actions do
not breach the Act since it refused to represent the applicant based on
her failure to pay union dues since 2006 and not because of a prohibited ground
of discrimination.
[7]
In
her report, Ms. Bouchard summarized the applicant’s allegations as follows:
2. The
complainant alleges that she was denied adequate representation by the
respondent because of her sex. Her allegations of adverse differential
treatment are related to a series of events through application processes with
her employer, removal from an acting position, and the lack of assistance to
receive accommodation in her attempts to return to work.
3. In 2005,
the complainant took a five-year leave from the respondent, which separates her
allegations of discrimination into two periods, before her leave and her
attemps to return to work after her leave. […] The two sets of allegations are
as follows:
a)
From
January 2002 to December 2005, the complainant alleges that the respondent did
not provide her adequate representation based on her sex, while she was
attempting to acquire and stay in a PS 04 Institutional Psychologist position.
b)
In
March 2010, the complainant alleges that based on her sex, the respondent did
not provide her adequate representation in her attempt to return to work.
[8]
Ms.
Bouchard summarized the respondent’s position and indicated that the applicant
would be given an opportunity to respond to the Section 40/41 Report. She
agreed with the position taken by the respondent and concluded that it was
plain and obvious that, in 2010, the respondent had not refused to represent or
assist the applicant based on discriminatory reasons, but because she was not a
member of the respondent at that time. It is important to keep in mind that the
applicant’s reply to this position was brought to the Commission’s attention
only after it prepared the Section 40/41 Report.
[9]
The
relevant excerpts of the Section 40/41 Report in that regard read as follows:
3 . . . As of
May 2006, the complainant began working for the Department of National Defence
(DND). Also as of 2006, the complainant was no longer paying union dues, and
therefore was no longer considered a member of the Institute. . . .
. . .
24. In this case
it is plain and obvious that the complainant stopped paying union dues in 2006
and is no longer a member of the Institute. Therefore, as of her leave in 2006
and then her employment with DND she was no longer a member or represented by
the respondent. Section 9(1)(c) is applicable “where the individual is a member
of the organization pursuant to a collective agreement relate to the
individual.” As the complainant was not a member of the Institute in March
2010 they could not be a respondent to an allegation of discrimination under
section 9 of the Act. This reasoning is extending into the application of
section 10, which in this context states that it is an [sic]
discriminatory practice for an employee organization to pursue a practice “that
deprives or tends to deprive an individual or class of individuals of any
employment opportunities on a prohibited ground of discrimination.” As the
complainant was not a member of the union in March 2010, it is plain and
obvious that she was not subject to any policies or practices of the
respondent, or to discrimination under section 10 of the Act.
25. It is plain
and obvious that the complainant does not have reasonable grounds to believe
that the respondent failed to represent her because of her sex. Although the
complainant may have had reasonable grounds for her first set of allegations,
in the second set of allegations, it is cleat that the respondent did not
represent or assist her because she was not a member of the institute, not
because of her sex as the complainant alleges.
[10]
With
respect to the objection relating to the limitation period, Ms. Bouchard was of
the view that although the two sets of allegations were similar, they did not
pertain to the same allegations and raised two different issues. Based on her
view that the allegation regarding the 2010 events fell beyond the Commission’s
jurisdiction, she only assessed the first set of allegations. She found that
the first set of allegations occurred over four years prior to the filing of
the complaint. Pursuant to paragraph 41(1)(e) of the Act, she
opined that it was not appropriate for the Commission to extend the limitation
period. Ms. Bouchard expressed that the applicant failed to act with due
diligence in seeking redress and that the respondent would be seriously
prejudiced in its ability to defend itself and respond to the allegations
because of the delay in filing.
[11]
In
its decision, the Commission did not take a position on the issue of whether
the allegations should be viewed as two different sets of allegations or as a
single pattern of discrimination occurring over time. Its reasons are brief and
read as follows:
The respondent did not act for the complainant at
the time of the 2010 allegations because the complainant was not a member at
the time and not because of a reason related to a prohibited ground. Based on
that, and given that the complainant was not a member of the respondent union
since 2006 due to her failure to pay union dues, it would be reasonable to
conclude that no allegations from 2006 onward would be subject to a complaint.
Therefore, the remaining allegations occurred more than one year before receipt
of the complaint by the Commission and it is not appropriate to deal with them
because the respondent has demonstrated that the delay in signing the complaint
has seriously prejudiced its ability to respond to the complaint.
[12]
For
these reasons, the Commission decided not to deal with the applicant’s
complaint.
II. Issues
[13]
The
only issue raised in this judicial review is whether the Commission erred in
deciding not to deal with the applicant’s complaint. However, the issue can be
separated into two sub-issues:
- Did the Commission err in
deciding that the applicant’s complaint fell outside of its jurisdiction, with
respect to the 2010 events?
- Did the Commission err in
deciding that it was not appropriate to deal with the allegations that occurred
over four years prior to the filing of the complaint?
III. Standard of review
[14]
In
Dunsmuir v New Brunswick, 2008 SCC 9 at para 62, 1 SCR 190 [Dunsmuir],
the Supreme Court held that the first step in conducting a standard of review
analysis is to “ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of deference to be accorded with regard to a
particular group of questions. . .”
[15]
I
am of the view that the jurisprudence satisfactorily established that a
decision by the Commission to refuse to deal with a complaint on the basis that
it did not disclose a link with a prohibited ground of discrimination is
reviewable under the reasonableness standard (Best v Canada (Attorney General),
2011 FCA 351 at para 2, 427 NR 381; Hartjes v Canada (Attorney General),
2008 FC 830 at paras 16-21 and 30, 334 FTR 277 [Hartjes]; Tomar v
Toronto Dominion Bank, 2009 FC 595 at para 25, 345 FTR 262; see also the
principles in Halifax (Regional Municipality) v Nova Scotia (Human Rights
Commission), 2012 SCC 10 at paras 17, 27, 343 DLR (4th) 385 [Halifax
Regional Municipality]; Canada (Attorney General) v Maracle, 2012 FC
105 at paras 17‑21, [2012] 2 CNLR 37 [Maracle]).
[16]
The
issue related to the timeliness of the complaint and to whether the Commission
should extend the limitation period, is also reviewable under the
reasonableness standard. This type of decision involves an exercise of
discretion and the Court should show deference (Halifax Regional Municipality, above at para 17; Richard v Canada (Attorney General), 2010
FCA 292 at paras 9, 15, 327 DLR (4th) 292; Bredin v Canada (Attorney General), 2008 FCA 360 at para 16, 383 NR 192).
[17]
The Court’s role when reviewing a decision against the standard of
reasonableness is defined in Dunsmuir, above, at para 47:
. . . A court conducting a review for reasonableness inquires into
the qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
IV. The
parties’ arguments
A) The
applicant’s arguments
(1) Did the Commission
err in deciding that the applicant’s complaint fell outside of its jurisdiction,
with respect to the 2010 events?
[18]
The
applicant argues that the Commission’s decision based on paragraph 41(1)(c)
of the Act was flawed. First, she contends that it was unreasonable for
the Commission to conclude that she was not a member of the respondent’s union.
Second, she argues that the Commission failed to deal with the arguments that
she raised in her response to the Section 40/41 Report.
[19]
The
applicant submits that in finding that she was not a member of the respondent
when she sought assistance in March 2010, the Commission adopted a far too
narrow interpretation of paragraph 41(1)(c) of the Act and of the
concept of union membership. Rather, this provision must be interpreted broadly
to protect constitutional rights. In particular, the Commission interpreted the
term “member” in a way that fails to recognize that the applicant is required
to belong to a union pursuant to a collective agreement and is thereby subject
to all the policies and procedures of that union.
[20]
The
applicant also submits that she was, indeed, a member at the time the
respondent refused to represent her. She was simply not a member in good
standing. Paragraph 14.2.4.1 of the respondent’s By-Laws states that “[a]
member who is more than ninety (90) days in arrears in the payment of fees
shall be considered to be “not in good standing.” Once considered “not in good
standing” a member may reinstate good standing status by paying the amount
owed.” The use of the term “member” in the text of this By-Law demonstrates
that she was still a member and her employment is fully covered by the
collective agreement. The applicant argues that to exclude a member, (even a
member not in good standing), from seeking redress for human rights violations
is unreasonable.
[21]
The
applicant also argues that the Commission failed to consider why she did not
pay her unions dues. First, she contends that she ceased paying union dues when
she began her leave without pay and received no salary from which to draw the
dues. Second, this situation happens each and every time someone takes a leave
without pay and it had happened to her on a prior occasion. Normally, the
person resumes paying the dues when she or he returns to work. In this case,
the respondent did not offer her any arrangements for reimbursement. She would
have been willing to resume paying union dues and reimburse her arrears were it
not for the conversations that she had with the respondent’s
representative when she sought assistance in March 2010. She admits having been
told that the respondent would not represent her if she did not reimburse her
union dues, however she also understood from her conversations with the
respondent’s representative that she would not receive any meaningful
representation even if she reinstated her status as a member in good standing. In
her view, this was in line with the pattern of discrimination that she had
encountered with the respondent since 2001. The applicant argues that the
Commission failed to consider that the reason the union dues had not been paid
was because of the discrimination that formed the basis of the complaint.
[22]
The
applicant submits that the Commission never dealt with her arguments in the
short decision that it rendered.
[23]
The
applicant further contends that there was an error in the Section 40/41 Report.
Ms. Bouchard stated that in 2006 she left the CSC and went to work with
the Department of National Defence. However, the applicant argues that in 2006
she went on leave without pay but remained an employee of the CSC. She took on
independent contractual work with other departments during her leave.
B) The
respondent’s arguments
[24]
The
respondent submits that there is only one reason why it denied legal
representation to the applicant in 2010 and that is because of her failure to
repay arrears after being notified of the requirement. The Section 40/41 Report
made this determination based on the evidence before it. Notably, the
respondent explained to the Commission that its By-Law 7 makes it clear that
all of the rights of membership are subject to being a member in good standing.
The respondent insists that the Commission has considerable discretion under
paragraph 40(1)(c) of the Act in assessing whether to deal with a
complaint and its decision was entirely reasonable.
[25]
The
respondent submits that the applicant’s contention that she was offered less than
adequate representation is not consistent with the facts. In fact, she was
offered no representation at all. Further, the respondent argues that the fact
that the applicant believed she would not receive adequate representation is
speculative. In addition, the applicant makes bald assertions about
discrimination without enough evidence to support the allegations. The
respondent contends that the preliminary advice that it gave to the applicant
was sound and reasonable considering her circumstances.
[26]
The
respondent submits that paragraph 41(1)(c) of the Act permits the
Commission to refuse to deal with a complaint if it is beyond its jurisdiction
or if it is plain and obvious that there is no prima facie case of discrimination.
The facts plainly demonstrate that the respondent denied the applicant representation
because of the non-payment of her union dues. On this basis, the Commission’s
decision that it was plain and obvious that the complaint was beyond its
jurisdiction is reasonable.
[27]
The
respondent acknowledges that the Commission’s decision is brief but argues that
the Section 40/41 Report is more complete and forms part of the Commission’s
reasons.
V. Analysis
[28]
The
Commission acts as a gate-keeper to the Canadian Human Rights Tribunal. The
Commission’s mandate was enunciated by Justice Laforest in Cooper v Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854 at para 53, 140 DLR
(4th)193:
53 The Commission is not an adjudicative
body; that is the role of a tribunal appointed under the Act. When deciding
whether a complaint should proceed to be inquired into by a tribunal, the
Commission fulfills a screening analysis somewhat analogous to that of a judge
at a preliminary inquiry. 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
provisions 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. . . .
[29]
This
role was recently reiterated by the Supreme Court in Halifax Regional Municipality, above at para 50.
[30]
Once
a complaint is filed, the Commission must make a preliminary decision about
whether or not it will deal with the complaint by launching an investigation.
Although the Commission’s decision and decision-making process should be
afforded deference (Halifax Regional Municipality, above at para
51), the jurisprudence establishes that the Commission should be prudent in
dismissing a complaint at the pre-investigation stage. I recently had the
opportunity to discuss the need for prudence at that early stage of the process
in Maracle, above at para 40:
This approach has been endorsed by this Court in
several judgments (Comstock, above, at paras 39-40, 43; Hartjes, above,
at para 30, Hicks, above, at para 22; Michon-Hamelin v Canada (Attorney General), 2007 FC 1258 at para 16 (available on CanLII) [Michon-Hamelin])
and I also endorse it. This approach is consistent with the Commission's
primary role under the Act as a gate-keeper responsible for assessing the
allegations of a complaint and determining whether they warrant an inquiry by
the Tribunal. In deciding whether to deal with a complaint, the Commission is vested
with a certain level of discretion but it must be wary of summarily dismissing
a complaint since the decision is made at a very early stage and before any
investigation. The question of whether a complaint falls within the
Commission's jurisdiction may, in itself, require some investigation before it
can be properly answered. It is worth noting that, at the end of the
investigation process, the Commission can again, pursuant to subparagraph
44(3)(1)(b)(ii) of the Act, dismiss a complaint for lack of jurisdiction.
[31]
In
Maracle, above at para 39, I also referenced the approach proposed by
Justice Rothstein in Canada Post Corp v Canada (Canadian Human Rights
Commission) (1997), 130 FTR 241, 71 ACWS (3d) 935 (TD); aff’d (1999), 169
FTR 138, 245 NR 397 (FCA). In this view, the Commission should only decline to
deal with a complaint where it is plain and obvious that the matter is beyond
its jurisdiction:
39 As stated above, the first decision
that the Commission must make upon receiving a complaint is whether it will
deal with it and investigate the allegations. Section 41 of the Act obliges the
Commission to deal with all complaints that are filed unless it appears to it
that the complaint falls within the exceptions set forth in section 41; one of
those exceptions being that the complaint is beyond its jurisdiction. The
approach that the Commission should adopt when deciding whether to deal with a
complaint, and the approach that the reviewing court should keep in mind, was
enunciated by Justice Rothstein in Canada Post Corp v Canada (Canadian Human
Rights Commission) (1997), 130 FTR 241, 71 ACWS (3d) 935 (TD); aff'd
(1999), 169 FTR 138, 245 NR 397 (FCA) [Canada Post], wherein he held
that the Commission should decline to deal with a complaint only where it is plain
and obvious that the matter is beyond its jurisdiction:
3 A decision by the Commission under
section 41 is normally made at an early stage before any investigation is
carried out. Because a decision not to deal with the complaint will summarily
end a matter before the complaint is investigated, the Commission should
only decide not to deal with a complaint at this stage in plain and obvious
cases. The timely processing of complaints also supports such an approach.
A lengthy analysis of a complaint at this stage is, at least to some extent,
duplicative of the investigation yet to be carried out. A time consuming
analysis will, where the Commission decides to deal with the complaint, delay
the processing of the complaint. If it is not plain and obvious to the
Commission that the complaint falls under one of the grounds for not dealing
with it under section 41, the Commission should, with dispatch, proceed to deal
with it.
[Emphasis added]
[32]
That
approach has been endorsed on several other occasions by this Court (Comstock
v Public Service Alliance of Canada, 2007 FC 335 at paras 39-40, 43, 310
FTR 277; Hartjes, above at para 30; Hicks v Canada (Attorney General),
2008 FC 1059 at para 22, 334 FTR 260; Michon‑Hamelin v Canada (Attorney
General), 2007 FC 1258 at para 16 (available on CanLII)).
[33]
This
Court has also stated that as the “plain and obvious” test is very similar to
the test for striking out a court pleading on the basis that it does not
disclose a reasonable cause of action, the test should be applied by taking the
alleged facts as true. In Maracle, above at para 42-43, I adopted this
approach as follows:
42 As the respondents suggest, the
"plain and obvious" test proposed by Justice Rothstein is very
similar to the test for striking out a court pleading on the basis that it
discloses no reasonable cause of action. The approach proposed in the context
of such a motion by the Supreme Court of Canada in Hunt v Carey Canada Inc,
[1990] 2 S.C.R. 959 at para 33, 74 DLR (4th) 321, may be of assistance to the
Commission when it determines whether a complaint should be summarily dismissed
without any investigation:
Thus, the test in Canada . . . is . . .
assuming that the facts as stated can be proved, is it "plain and
obvious" that the plaintiff's statements of claim discloses no reasonable
cause of action? As in England, if there is a chance that the plaintiff might
succeed, then the plaintiff should not be "driven from the judgment
seat". Neither the length and complexity of the issues, the novelty
of the cause of action, nor the potential for the defendant to present
strong defence should prevent the plaintiff from proceeding with his or her
cause. ...
[Emphasis added]
43 This Court has endorsed a similar
approach in Michon‑Hamelin, above, at para 23, where Justice
Mactavish held that at the pre-investigation stage, the factual allegations
contained in the complaint should be taken as true. In my view, this is an
appropriate approach. The decision of the Commission is of a preliminary nature
and is based on arguments presented by the parties without any examination of
evidence. A thorough analysis of the complainant's allegations and of the
arguments of the opposing party, at the pre-investigation stage would be
"to some extent, duplicative of the investigation yet to be carried"
(Canada Post, above, at para 3). Furthermore, where a party
alleging a lack of jurisdiction from the Commission raises arguments that
involve both factual and legal arguments, it is, in my view, an indication that
some investigation is required in order for the Commission to determine whether
the allegations disclose a sufficient link to a prohibited ground.
[34]
In
Hartjes, above at para 23, the Court held that the complainant bears the
burden of including sufficient information to persuade the Commission that
there is a link “between complained-of-facts and a prohibited ground”, but that
this threshold is low.
[35]
In
this case, the issue is whether it is plain and obvious that the complaint did
not disclose any link between the allegation that the respondent refused to
represent and/or assist the applicant and a prohibited ground of
discrimination. The applicant claims that the respondent was not willing to
offer her meaningful representation even if she agreed to reimburse her union
dues. In doing so, it was perpetuating its differential treatment based on her
gender.
[36]
With
all due respect, I find that the Commission’s decision to refuse to deal with
the complaint is unreasonable.
[37]
It
is clear from the Commission’s decision that it espoused the respondent’s
position that it refused to represent the applicant because she was not a
member of the respondent at the relevant time, due to her failure to repay the
arrears of her union fees. However, the applicant raised several arguments to
counter that allegation in response to the Section 40/41 Report. Those
arguments were the same ones that she raised before this Court. More
specifically, she alleged that the discussions that she had with the
respondent’s representative convinced her that she would not get meaningful
representation even if she repaid her union dues and that this is why she did
not do so. The applicant further argued that despite the fact that she was not
a member in good standing because of her union dues arrears, she was still a
“member” of the respondent and that the attitude of the respondent towards her
was a manifestation of its discriminatory practices. The applicant made those
allegations and raised arguments in favour of the Commission’s jurisdiction in
her lengthy response to the Section 40/41 Report. It is clear from the Section
40/41 Report, that Ms. Bouchard did not consider the applicant’s position as
the report only references the respondent’s position and indicates that the
applicant would have an opportunity to state her position in her response to
the Report.
[38]
In
reading the very brief decision of the Commission, I am unable to determine
whether the Commission turned its mind to the applicant’s allegations and
arguments in response to the Section 40/41 Report and grappled with them.
[39]
In
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14-16, [2011] 3 S.C.R. 708, the Supreme
court enunciated that the reasons given by administrative tribunals need not be
comprehensive:
16 Reasons
may not include all the arguments, statutory provisions, jurisprudence or other
details the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion (Service
Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses
Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met.
[40]
However,
I do not interpret the Supreme Court’s decision to mean that an administrative
tribunal is absolved from giving meaningful reasons. In reading the
Commission’s decision, I understand that the Commission adopted the position
presented by the respondent that the applicant was not a member of the
respondent in March 2010 and that it was for this reason that it refused to
represent her. However, the decision is silent with respect to the arguments
raised by the applicant to counter this claim. These allegations and arguments
were not “subordinate”, they were central to the applicant’s position. In my
view, they were serious enough to warrant either a further assessment or at
least a mention in the Commission’s decision. It is worth noting that the
Commission was acting at the pre-investigation stage, where it was to take the
applicant’s factual allegations as true, and that the decision had the effect
of dismissing the applicant’s complaint without further investigation.
[41]
One
must also bear in mind that rejecting a complaint at the pre-investigation
stage is an exception. In my view, the Commission must explain why it considers
that a complaint falls outside of its jurisdiction pursuant to section 41 of
the Act. This obligation to explain its decision must be adapted to the
context of each complaint. Although the Commission may not need to provide
comprehensive reasons, it must at least leave the complainant with the
impression that it considered his or her allegations before rejecting them.
This is even more important when certain arguments were not considered in the
preparation of the Section 40/41 Report and were only raised in response to the
Report. I consider that in these specific circumstances, the applicant, and the
Court, should have the assurance that the main arguments raised by the
applicant were considered by the Commission before it concluded that it was
plain and obvious that the complaint fell outside of its jurisdiction. Having
no assurance that the Commission turned its mind to these arguments, and
considering that it is not the Court’s role to determine whether a complaint
warrants an investigation, I am of the view that the Court is not in a position
to determine whether the Commission’s decision falls within the range of
acceptable possible outcomes.
[42]
The
situation in this case is somewhat similar to the situation that prevailed in Hicks,
above at paras 24-25, where Justice Snider expressed the following:
24 The main problem that I have with the Commission's decision
is that it does not address any of the arguments made by Mr. Hicks in his reply
of September 4, 2007. In his reply, Mr. Hicks made extensive submissions on the
topic of jurisdiction, with reference to case law that seems to apply a less
narrow view of family status and disability than was apparently taken by the
Commission. I do not know if the Commission had regard to the issues raised in
the reply or, if it did, why the Commission found these arguments to be without
merit.
25 The
situation before me is very similar to that in Johnstone. I acknowledge the
arguments made by the Commission before me that the human rights protected by
the CHRA do not extend as far as posited by Mr. Hicks. The Commission may be
right. However, on the record before me, I am not able to say with confidence
that the arguments of Mr. Hicks were heard and considered. In other words, I am
not persuaded that it is plain and obvious that there is no discrimination.
Thus, whether viewed on a standard of reasonableness or of correctness, I find
that the decision cannot stand.
[43]
The
same principles apply in this case and, accordingly, the Court’s intervention
is warranted.
[44]
The
Commission’s decision to dismiss the allegations relating to the 2010 events
had an impact on its decision regarding the timeliness of the complaint. It did
not take a position as to whether the events that unfolded from 2001 to 2006
formed part of one lengthy and continuous incidence of discrimination or formed
two sets of separate allegations. Therefore, it is not useful for the Court to consider
the second sub-issue raised in this application for judicial review.
[45]
The
matter should be remitted to the Commission. It should reassess the applicant’s
complaint and turn its mind to all of the relevant circumstances, including the
arguments raised by the applicant in favour of the Commission’s jurisdiction to
deal with the complaint. In light of its conclusions, the Commission may or may
not need to deal with the issue of timeliness in application of paragraph
41(1)(e) of the Act.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is allowed.
2.
The
Commission’s decision is overturned.
3.
The
matter is sent back to the Commission for a redetermination.
4.
Costs
are awarded in favour of the applicant.
“Marie-Josée
Bédard”
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