Date: 20070202
Docket: T-1075-06
Citation: 2007 FC 119
Ottawa,
Ontario, February 2, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
CONSTABLE
SHARON THOMPSON
Applicant
and
ROYAL
CANADIAN MOUNTED POLICE
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, against a decision of the Canadian Human
Rights Commission (the Commission), dated May 24, 2006, by which the Commission
declined to deal with the applicant’s complaint against the respondent Royal
Canadian Mounted Police (the RCMP), pursuant to paragraph 41(1)(e) of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6 (the Act).
[2]
For
the following reasons, I am satisfied that the application for judicial review
should be allowed.
BACKGROUND
[3]
Constable
Sharon Thompson (the applicant) has been a member of the RCMP since 1986. Between December 1997 and June 2002, the applicant was assigned to the
Eastern European Organized Crime Enforcement Unit, which was amalgamated into
the Combined Forces Special Enforcement Unit in January 2000. Chief Superintendent
Benedetto Soave was the officer in charge of both units at all material times.
[4]
On October 1, 2004, the applicant filed a formal harassment
complaint against Chief Superintendent Soave pursuant to section 40 of the Royal
Canadian Mounted Police Act, R.S.C. 1985, c. R-10. The applicant alleged in
her complaint that she was the victim of harassment in the workplace resulting
from the actions of Chief Superintendent Soave while she was under his command,
as he repeatedly touched her in an unwanted manner despite her requests that he
cease this behaviour.
[5]
An investigation was launched in October 2004; an interim
report was completed and communicated to the applicant on December 13, 2004, at
which point she states that she was told her complaint had been substantiated
and that proceedings against Chief Superintendent Soave would be implemented by
way of formal discipline. The very next day, on December 14, 2004, Chief
Superintendent Soave announced his intention to retire, effective April 27,
2005.
[6]
The investigation into the applicant’s complaint continued
and a final report was submitted to Assistant Commissioner Séguin on April 1,
2005. The report concluded that all allegations were founded and that formal
disciplinary actions should be undertaken against Chief Superintendent Soave.
[7]
On April 27, 2005, Chief Superintendent Soave retired from
the RCMP with no disciplinary action having been taken against him. During the
spring and summer of 2005, counsel for the applicant wrote to the RCMP to
enquire as to what steps were being taken to provide a response to the
substantiated allegations of harassment. On August 4, 2005, the applicant
received a letter from Assistant Commissioner Séguin informing her that the
RCMP did not intend to take any further actions in this matter.
[8]
On September 19, 2005, the applicant filed a complaint with
the Commission, against both the RCMP and Mr. Benedetto Soave, alleging that
she had been subjected to harassment and discrimination in the workplace on the
basis of sex. As relates to the RCMP specifically, she alleged that its failure
to take remedial action after concluding that her complaint was founded, was in
itself a breach of the Act.
DECISION
UNDER REVIEW
[9]
In its decision dated May 24, 2006, the Commission declined
to deal with the applicant’s complaint against the RCMP (Commission File No.
20052548) and Mr. Benedetto Soave (Commission File No. 20060002), on the basis
that the complaint was based on acts or omissions the last of which occurred
more than one year before the filing of the complaint. No further explanation
was provided. Since the complaint was dismissed under subsection 41(1) of the
Act following a recommendation of the Director of Pre-Complaint Services, no
investigation was undertaken on the merit of the complaint.
[10]
In this application, the applicant now seeks judicial
review of the Commission’s decision to decline to deal with her complaint
against the RCMP.
ISSUE FOR CONSIDERATION
[11]
The sole issue for consideration in this case is whether
the Commission made a reviewable error in dismissing the applicant’s complaint
against the RCMP on the basis of paragraph 41(1)(e) of the Act?
PERTINENT LEGISLATION
Canadian Human Rights Act, R.S.C. 1985, c. H-6
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7. It is a discriminatory practice, directly or
indirectly,
(a) to refuse to employ or
continue to employ any individual, or
(b) in the course of
employment, to differentiate adversely in relation to an employee,
on a
prohibited ground of discrimination.
14. (1) It is a discriminatory practice,
(a) in the provision of
goods, services, facilities or accommodation customarily available to the
general public,
(b) in the provision of
commercial premises or residential accommodation, or
(c) in matters related to
employment,
to
harass an individual on a prohibited ground of discrimination.
(2)
Without limiting the generality of subsection (1), sexual harassment shall,
for the purposes of that subsection, be deemed to be harassment on a
prohibited ground of discrimination.
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
[…]
(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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7.
Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction
illicite, le fait, par des moyens directs ou indirects :
a) de refuser d’employer ou de continuer d’employer un individu;
b) de le défavoriser en cours d’emploi.
14. (1)
Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction
illicite, le fait de harceler un individu :
a) lors de la fourniture de biens, de services, d’installations ou
de moyens d’hébergement destinés au public;
b) lors de la fourniture de locaux commerciaux ou de logements;
c) en matière d’emploi.
(2) Pour l’application du paragraphe (1) et sans qu’en soit
limitée la portée générale, le harcèlement sexuel est réputé être un
harcèlement fondé sur un motif de distinction illicite.
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 :
[…]
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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STANDARD OF REVIEW
[12]
In Price v. Concord Transportation Inc., [2003]
F.C.J. No. 1201, 2003 FC 946 at paragraphs 37 to 42, Madam Justice Elizabeth
Heneghan proceeded with a pragmatic and functional analysis to determine the
proper standard of review for a decision of the Commission under paragraph
41(1)(e) of the Act. She wrote:
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[37] In this case, the purpose of the legislative scheme
of the Act as a whole is to prevent discrimination and provide redress when
it does occur. However, the Act recognizes, through several provisions which
provide certain screening functions, that this purpose must be applied with
certain limitations on which complaints will proceed to the Tribunal stage.
Particular to the present situation, section 41(1)(e) reflects the concern
that complaints are to be brought forward in a timely manner.
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[38] The general function of a time limitation period in
any piece of legislation relates to gathering credible evidence, the concept of
certainty for defendants and due diligence on the part of plaintiffs.
Parliament recognized that including such a time limitation was an important
aspect of furthering expediency in the complaint process and fairness to the
party responding to a charge of discrimination. Further, section 41(1)(e)
recognizes that a black-and-white time bar would not be appropriate. The
Commission's fact finding expertise is fairly and appropriately put to work
by the added discretion to extend such time limitation if the Commission
considers it "appropriate in the circumstances".
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[39] There is no privative clause in the Act. The purpose
that a section 41(1) decision plays in the entire legislative scheme must be
kept in mind, that is to act as a screening function, to prevent claims that,
for various, enumerated reasons, should not be permitted to go forward. The
nature of the decision under review points to a more deferential standard of
review.
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[40] Further, the discretionary statutory language of the
Act, in section 41 and other sections which enable the Commission to perform
its screening function, was the subject of comment by the Federal Court of
Appeal in Bell Canada, [1998] F.C.J. No. 1609,
supra at paragraph 38:
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The Act grants the Commission a remarkable degree of
latitude when it is performing its screening function on receipt of an
investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are
replete with expressions such as "is satisfied", "ought
to", "reasonably available", "could more appropriately be
dealt with", "all the circumstances", "considers
appropriate in the circumstances" which leave no doubt as to the intent
of Parliament. The grounds set out ... [in subsections 44(2), 44(3)(a) and
44(3)(b)] involve in varying degrees questions of fact, law and opinion ...,
but it may safely be said as a general rule that Parliament did not want the
courts at this stage to intervene lightly in the decisions of the Commission.
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[41] Finally, the expertise of the Commission in respect
to fact finding is well-established in the jurisprudence: see Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
The determination under section 41(1)(e) falls squarely within such
expertise. Deference is also warranted on this ground.
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[42] Therefore, after applying the pragmatic and
functional analysis, the standard of review applicable to the Commission's
section 41(1)(e) decision not to deal with a complaint that was over one year
in the past, is a deferential one, that is, a standard of patent unreasonableness.
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[13]
Justice Heneghan's reasoning in Price has been
applied in subsequent decisions of this Court (see e.g. Dupéré v. Canada (House of Commons), [2006] F.C.J. No. 1262,
2006 FC 997 at
paragraph 52). The applicant submits that the existing jurisprudence
can be distinguished on the facts. In Price for example, the issue was
whether the Commission erred by not exercising its discretion to consider the
complaint, even though it was out of time. In Dupéré, the decision of
the Commission was found to be patently unreasonable for having relied on an
investigator’s report replete with factual errors. In this case, we are
concerned with whether the Commission properly appreciated the factual evidence
before it in reaching its decision. As this is essentially a question of fact,
I find the reasoning in Price to be perfectly relevant and see no need
to distinguish it on the facts of this case.
[14]
Therefore, I see no reason to proceed with an independent
pragmatic and functional analysis, but choose instead to adopt the conclusion of
Justice Heneghan in Price that the proper standard of review is patent
unreasonableness.
PRELIMINARY
MOTION
[15]
The applicant filed a late motion document to strike
documents included in the respondent’s book of authorities, as well as paragraphs
18 and 20 of the respondent’s memorandum of fact and law.
[16]
Neither the motion record of the applicant nor that of the
defendant was in compliance with rule 364(2)(e) of the Federal Courts Rules,
SOR/98-1-6.
[17]
Nevertheless, I have examined the material filed and, in my
view, the motion should be dismissed. The documents in question are the RCMP’s
“Interpersonal Conflict and Harassment in the Workplace Policy” and the RCMP’s
“Policy on Code of Conduct Investigations”, two documents in force at the time
of the Commission’s decision.
[18]
Furthermore, these documents have only a peripheral impact
on the particular issue before the Court. There is thus no prejudice to either
party to keep these documents in the file.
[19]
Therefore, the applicant’s motion is dismissed, without
costs.
ANALYSIS
[20]
As noted above, the sole issue for consideration in this
case is whether the Commission made a reviewable error in dismissing the
applicant’s complaint against the RCMP on the basis of paragraph 41(1)(e) of
the Act.
[21]
The language of subsection 41(1) of the Act is in no way
ambiguous – it states that the Commission “shall deal with any complaint”, unless
one of the conditions in paragraphs a) through e) is met. As Mr. Justice Andrew
W. Mackay noted at paragraph 16 of his decision in Cape Breton Development
Corp. v. Hynes, [1999] F.C.J. No. 340,
(1999) 164 F.T.R. 32:
It
is also to be noted that the decision here in question is a preliminary
decision. The Commission is bound to accept for consideration a
complaint filed in accord with s.41, unless there are exceptional circumstances
as set out in paragraphs (a) to (e) of that section. Where a
complaint is filed more than a year after the act or situation giving rise to
the complaint, the Commission is bound to consider whether it should be dealt
with, under paragraph (e). Even if it does decide to do so, that is
a preliminary decision that precedes the designation of an investigator to
investigate the complaint. The decision in question here is not a
decision on the merits of the complaint.
[22]
While subsection 41(1) of the Act does not guarantee any
particular result, it clearly states that the Commission is statutorily
required to proceed with an investigation, unless the complaint falls within
one of the grounds listed in paragraphs a) through e). In the case before us,
in deciding not to proceed with an investigation, the Commission relied on
paragraph 41(1)(e), which states that:
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(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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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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[23]
In addition, the Federal Court of Appeal in Canada Post
Corp. v. Canada (Human Rights Commission), [1997] F.C.J. No. 578, 130
F.T.R. 241, held at paragraph 3 that, because a decision under section 41 “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”.
[24]
Determining whether a complaint is out of time appears to
this Court to be a fairly straightforward exercise. One must identify the
actions or omissions forming the basis of the complaint and the date at which
they are alleged to have occurred, and calculate whether they took place within
the one year preceding the filing of the complaint before the Commission. As
noted by the applicant, the determination of the date of the alleged
discrimination in the preliminary screening process is made on the basis of
information contained in the written complaint and the written submissions of
the parties; there is thus no witness testimony to entertain and no need for the
Commission to make credibility assessments. This is acknowledged by the
respondent who states in his memorandum that a determination under paragraph
41(1)(e) of the Act is a purely factual exercise.
[25]
In her complaint, the applicant alleged sexual harassment
on the part of Chief Superintendent Soave, based on a series of events that took
place between 1997 and 2002. As the complaint was filed in September 2005, the
Commission was well within its right to decline to investigate these
allegations against Mr. Soave, on the basis that the alleged acts occurred more
than one year before the complaint was filed.
[26]
The second prong of her complaint, however, was with
regards to the failure of the RCMP to take appropriate remedial actions after
investigating and substantiating the allegations of sexual harassment. More
notably, the RCMP allowed Chief Superintendent Soave to retire from the RCMP
without undergoing any disciplinary action and to continue to represent the
RCMP after his retirement. As such, the applicant alleges that the RCMP has
failed in its obligations as an employer under section 7 of the Act. This
failure to act was reflected in the lack of disciplinary measures undertaken
against Chief Superintendent Soave following the issuance of the report in April
2005, and the letter from Assistant Commissioner Séguin dated August 4, 2005,
informing her that the RCMP did not intend to take any further action in this
matter. These allegations against the RCMP were clearly articulated at
paragraphs 21 and 22 of the applicant’s complaint form, and reiterated in
greater details in the letters sent to the Commission by the applicant’s
counsel, dated February 23, 2006 and April 26, 2006. As the alleged acts and
omissions occurred in the spring and summer of 2005, they clearly fall within
the one year preceding the filing of the complaint in September 2005.
[27]
In a letter to the Commission dated April 10, 2006, Tabatha
Tranquilla, Human Rights Advisor for the RCMP, stated that the final report submitted
to Assistant Commissioner Séguin concluded that all allegations were founded
and that formal disciplinary actions should be undertaken against Chief
Superintendent Soave. The letter also confirmed the date at which the investigation
was launched and the date the final report was issued. However, Ms. Tranquilla
noted that, as Chief Superintendent Soave resigned before any disciplinary
action could be taken, the RCMP had no further jurisdiction under which to
apply disciplinary measures and could take no further action against him.
[28]
While an investigation into this complaint by the
Commission might very well have revealed that the RCMP was in fact powerless to
act in time, this is irrelevant for our purposes, since no investigation on the
merit was ever undertaken by the Commission, which dismissed the complaint
solely on the technical ground that the allegations raised against the RCMP were
out of time, as they were based on acts or omissions, the last of which occurred
more than one year before receipt of the complaint.
[29]
The applicant submits, and I concur, that based on the
information before it, there was no rational basis upon which the Commission
could have determined that the complaint against the RCMP was out of time, as
the alleged acts and omissions clearly occurred less than one year before the
complaint was filed. As such, I find that the decision of the Commission was
patently unreasonable and should be set aside.
JUDGMENT
1.
The
application is allowed;
2.
The
matter is sent back to the Commission that shall deal with the complaint in
light of these reasons;
3.
Costs
in favour of the applicant.
“Pierre Blais”
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