Date: 20071004
Docket: T-1619-06
Citation: 2007 FC 1021
Ottawa, Ontario, October 4,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
VERNON JOHNSON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application for judicial review of a decision by the Canadian Human
Rights Commission (the Commission) dated August 11, 2006 which approved the
terms of settlement negotiated by the parties pursuant to section 48 of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6 (CHRA).
[2]
The
applicant requests:
a)
an
order quashing the Commission’s decision dated August 11, 2006;
b)
an
order compelling the Commission to convene a tribunal to hear the applicant’s
original complaint; or
c)
in
the alternative, an order directing the parties to return to conciliation; and
d)
costs
of this application in an amount fixed by the Court, plus GST.
Background
[3]
The
applicant has been an employee of the Government of Canada since September
1980. In November 1996, he began working for the Department of National Defence
(the Department) in an AS-3 position. In 2002, he received a promotion and
began working as a PE-2. His primary responsibilities in this position included
staffing, employment equity, training and recognitions.
[4]
On
April 2, 2003, the applicant filed a complaint with the Commission against the
Department. The applicant alleged that he received adverse differential
treatment as per sections 7 and 14 of CHRA when he was denied promotions and
other opportunities. The applicant’s complaint also alleged that he had been
discriminated against on numerous other occasions because of his race and
colour.
[5]
The
Commission conducted a preliminary investigation of the complaint and
recommended the appointment of a Human Rights Tribunal to inquire into the
complaint. In doing so, the Commission stated that the case required an
assessment of the credibility of the parties and their evidence.
[6]
On
February 21, 2006, the parties attended a conciliation session wherein both
parties were represented by counsel. The applicant was represented by his then
legal counsel; he has since retained new legal counsel. The parties did not
meet face to face; instead, the conciliator went back and forth between the
parties, who were located in separate rooms. At one point in the conciliation
session, counsel for the parties met in caucus without the conciliator. The
conciliation lasted fourteen hours. Upon its conclusion, the conciliator
drafted a letter of understanding which was signed by the parties, their legal
counsel and the conciliator.
[7]
The
letter of understanding contained a number of agreements reached by the parties
and contemplated that a further document entitled minutes of settlement would
be drafted and signed by the parties. Furthermore, the letter of understanding
required the parties to follow-up on certain matters before the minutes of settlement
were signed. Specifically, the Department was to draft a letter of employment
for the applicant and to identify key activities for an AS-4 position to which
the applicant would be assigned. The applicant was to provide a letter of
certification indicating his fitness to return to work.
[8]
On
March 1, 2006, the Department fulfilled the above-mentioned requirements and
informed the conciliator. The conciliator then drafted the minutes of settlement.
A copy of the minutes of settlement was then provided to each party for
signature. The appropriate representatives from the Department signed. The
applicant refused to sign.
[9]
The
conciliator then issued its conciliation report dated June 7, 2006 which
recommended the following to the Commission:
The parties met in conciliation on 21
February, 2006, and agreed to settle the complaint as per the attached Letter
of Understanding, signed by the parties as well as their respective legal
counsel. It was understood by the Conciliator and by the parties that the
Letter of Understanding was drafted as an interim settlement due to time
constraints. This intention is clearly set out in the preamble of the Letter of
Understanding. After the conciliation, the respondent provided some additional
information for clarification purposes and in order to address some of the
commitments in Letter of Understanding.
The formalized Minutes of Settlement,
attached, was subsequently provided to the parties, however, the complainant
has refused to sign the Minutes of Settlement.
It is recommended, pursuant to section 48
of the Canadian Human Rights Act, that the Commission approve the terms
of the settlement agreed to by the parties.
[10]
The
parties then filed written submissions with the Commission regarding the
conciliation report, the alleged agreement and the approval of the terms of
settlement under section 48 of CHRA.
[11]
Section 48
of CHRA reads:
(1) When,
at any stage after the filing of a complaint before the commencement of a
hearing before a Human Rights Tribunal in respect thereof, a settlement is
agreed on by the parties, the terms of the settlement shall be referred to the
Commission for approval or rejection.
(2) If
the Commission approves or rejects the terms of a settlement referred to in
subsection (1), it shall so certify and notify the parties.
(3) A
settlement approved under this section may, for the purpose of enforcement, be
made an order of the Federal Court on application to that Court by the
Commission or a party to the settlement.
[12]
By
letter dated August 11, 2006, the Commission informed the parties that they had
approved the terms of settlement between the parties pursuant to section 48 of
CHRA. This is the judicial review of the Commission’s decision.
Commission’s Reasons for
Decision
[13]
In
a letter to the parties dated August 11, 2006, the Commission approved the
terms of the settlement agreed on by the parties for the following reasons:
1. The agreement was
reached by the parties through conciliation and the parties were represented by
legal counsel;
2. The agreement was
signed by the parties after lengthy discussion and with the advice of legal
counsel;
3. The agreement
provides that the Commission will monitor the settlement to ensure that the
terms are carried out as stated.
Issues
[14]
The
applicant has submitted the following issues for consideration:
1. Does the signed letter
of understanding constitute a settlement between the parties that the Commission
could approve as settlement of the applicant’s complaint?
2. If the signed letter
of understanding is a binding agreement between the parties, did it contain the
necessary provisions to be approved by Commission as settlement of the
applicant’s complaint?
3. Did the applicant
endorse the terms of the minutes of settlement when he signed the letter of understanding?
4. If the minutes of settlement
is not an agreement binding on the parties, did the Commission make a
reviewable error when it approved the settlement?
[15]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Commission
err in finding that a settlement had been agreed to by the parties as required
by section 48 of CHRA?
Applicant’s Submissions
[16]
The
applicant submitted that he did not sign the minutes of settlement; therefore,
it did not constitute a settlement agreed on by the parties, and consequently,
the Commission erred in approving it pursuant to section 48 of CHRA.
[17]
The
applicant submitted that under section 48 of CHRA, the Commission only
has the authority to approve a settlement that has been agreed to by the
parties. The applicant further submitted that CHRA does not confer power
upon the Commission to impose settlement terms on the parties. The applicant
noted that this Court previously held that CHRA was to be construed and
applied so as to ensure the remedial goals of the legislation were best
achieved (see Loyer v. Air Canada, 2006 FC 1172, 2006 Carswell Nat
3092 (Fed)). The applicant argued that these remedial goals cannot be achieved
if the parties have a settlement imposed on them, without having agreed to its
terms.
[18]
The
applicant also submitted that of the instances where the question of whether
the parties had actually agreed to settlement terms was as issue, there are no
reported cases where a decision by the Commission to impose a settlement on the
parties has been upheld on judicial review.
[19]
The
applicant submitted that the letter of understanding by no means constituted a
settlement between the parties that the Commission could approve under section
48 of CHRA as settlement of the applicant’s complaint. The applicant
argued that a letter of understanding is similar in form and function to a letter
of intent in that it is created during negotiations; it sets out some of the
terms that the parties have agreed to, and provides that the parties agree to
create a binding contract in the future based on the terms provided in the letter
of understanding.
[20]
The
applicant submitted that when assessing whether a letter of intent is actually
a binding contract, the courts have typically looked to the context in which
the agreement was signed to determine the intentions of the parties (see Modderman
v. Ondaatje Corp, [1998] O.J. No. 3018 (Ont. Gen. Div.). With regards
to the context in which the letter of understanding was signed, the applicant
made the following submissions:
1. The letter of understanding
included the following statement: “For the purposes of an interim settlement,
leading to formalized Minutes of Settlement, the parties agree to the
following”. This language is not language found in a contract intended to
create binding relations; it indicates that there remained details to be worked
out.
2. The letter of understanding
included the requirement that the respondent endeavour to identify the key
activities/positions to which the complainant could return to work in an AS-4
position. This requirement was to be completed prior to the signing of the minutes
of settlement. The fact that the respondent was to complete this task before
the signing of the minutes of settlement demonstrates that the key
activities/positions identified by the respondent had to be thereafter approved
by the applicant.
3. The applicant
believed that the document he was signing was only a preliminary document,
similar to a letter of intent, and that the minutes of settlement was to be the
parties’ formal binding agreement.
[21]
Based
on the above contextual factors, the applicant submitted that the letter of understanding
was not a binding legal settlement.
[22]
The
applicant further submits that even if the Court finds that the letter of understanding
was a binding agreement between the parties, it did not contain the necessary
provisions to be approved by the Commission. The applicant noted that the
Commission’s letter dated August 11, 2006 provided the following reasons for
the approval of the settlement agreement under section 48 of CHRA: (i) the
parties were represented by counsel, (ii) the agreement was signed by the
parties with the advice or counsel, and (iii) the agreement provided that the
Commission would monitor the settlement to ensure that the terms were carried
out as stated. The applicant submits that the signed letter of understanding
included no provision that the Commission would monitor the settlement to
ensure that the terms were carried out as stated. This provision was included
in the minutes of settlement and as such, the letter of understanding alone was
insufficient to act as a settlement.
[23]
The
applicant then went on to address whether he endorsed the terms of the minutes
of settlement when he signed the letter of understanding. The applicant
submitted that the minutes of settlement contain greater detail and impose new
obligations on the applicant absent in the letter of understanding.
Specifically, the applicant noted clauses 9, and 12 to 15. The applicant
submitted that because of these additional clauses, signing the letter of understanding
cannot be interpreted as assenting to all the terms in the minutes of settlement
(see Bawitko Investments Lted. v. Kernels Popcorn Ltd. (1991), 79
D.L.R. (4th) 97 (Ont. C.A.) at 103 to 104).
[24]
The
applicant then submitted that the Commission erred in law by approving the minutes
of settlement as they were not agreed on by the parties and thus, section 48
did not apply. The applicant submitted that in general, the determination of
whether an agreement has been reached between two parties is a question of law.
Furthermore, the applicant submitted that deciding whether or not an agreement
was reached is outside the Commission’s typical administrative role of
assessing whether there is sufficient evidence to warrant proceeding, and
accordingly, it should not be given the high degree of deference normally
awarded (see Cooper v. Canada (Human Rights Commission) 1996 3
S.C.R. 854 at 889-93, [1996] S.C.J. No. 115 (QL)).
Respondent’s Submissions
[25]
The
respondent submitted that the Commission’s decision was reasonable. The
respondent argued that the true reason for this application was that the
applicant has now changed his mind as to the reasonableness of the settlement
and is unhappy with the representation that he received from this previous
counsel. The respondent submitted that this is not a sufficient basis upon
which to set aside the Commission’s decision and as such the application should
be dismissed.
[26]
With
regard to the appropriate standard of review, the respondent made the following
submissions regarding the pragmatic and functional approach. The respondent
submitted that CHRA does not contain a privative clause, but that this
silence is a neutral factor (see Dr. Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 27; Loyer
v. Air Canada, [2006]
F.C.J. No. 1473 (Q.L) at paragraph 46). The respondent submitted that the
question of whether the parties reached a valid and binding settlement at
conciliation is a matter that falls squarely within the expertise of the
Commission and thus considerable deference is warranted (see Dr. Q, above;
Loyer above; Moussa v. Canada, (2006) F.C.J. No. 1169
(T.D.)(Q.L.) at paragraph 32). With regard to the purpose of the Act, the
respondent submitted that CHRA is supposed to prevent discrimination and
provide remedies (see Loyer above). The purpose of section 48 in
particular has been noted by this Court as ensuring that the Commission has
input into settlement, in order to ensure that the remedial goals of CHRA are
adequately addressed in the settlement of a human rights complaint. The
respondent submitted that the discretionary nature of section 48 indicates that
a significant amount of deference is owed.
[27]
Finally,
regarding the nature of the problem, the respondent submitted that the
Commission’s decision involved a consideration of the terms of the settlement
and the circumstances surrounding the conciliation. As such, this is a question
of mixed law and fact, albeit one that is highly fact specific. Thus, a
significant amount of deference is owed. The respondent submitted that the
appropriate standard of review is reasonable simpliciter (see Canada (Director of
Investigation and Research) v. Southam, [1997] 1 S.C.R. 748).
[28]
The
respondent submitted that there is a well established policy in favour of
upholding and enforcing settlement agreements agreed upon by litigants.
Fostering secondary litigation to overturn these settlements is contrary to
both court and public policy (see Perrin v. Cara Operations Ltd., (2004)
O.J. No. 1582 (Sup. Ct) (Q.L.) at paragraph 24).
[29]
The
respondent submitted that the Commission correctly determined that the parties
had reached a valid and binding settlement at conciliation. The respondent
submitted that the following factors all indicate that the Commission’s
decision was reasonable:
1. The parties were in
agreement regarding the terms of the settlement as recorded in the letter of understanding.
2. The applicant was
represented by legal counsel during the conciliation and received legal advice
prior to signing the letter of understanding.
3. Paragraph 9 of the letter
of understanding specifically states that the “Complainant agrees that this
settlement is in full and final compensation for all incidents alleged in the
complaint and the complainant agrees to withdraw his human rights complaint.”
4. There are no
allegations that the applicant did not have the capacity to sign or did not
understand the terms contained in the letter of understanding.
5. The settlement
agreement is fair and reasonable. It provides financial compensation, renewed
employment, and guaranteed training and counselling for the applicant.
6. The Commission
reviewed the record in making its decision. The record included the applicant’s
written submissions and thus, he had the full opportunity to have his case heard
by the decision maker.
[30]
The
respondent also submitted that the applicant was told he did not have to sign
the letter of understanding immediately; however, he chose to do so.
[31]
With
regards to the relationship between the letter of understanding and the minutes
of settlement, the respondent argued that the terms of settlement are in no way
modified from the former to the latter. The respondent submitted that the
applicant’s submission that there were “significant additions” and
clarification of issues in the minutes of settlement is simply not true. The
respondent submitted that the only clauses added in the minutes of settlement
were the standard clauses of the Commission such as those relating to
implementation, confidentiality, and Commission approval of the settlement
under section 48 of CHRA.
[32]
The
respondent submitted that the letter of understanding required the Department
to follow-up on two matters: the letter of employment and the job description.
The respondent further submitted while these tasks were to be completed before
the signing of the minutes of settlement, they were not negotiable as the terms
in the letter of understanding were final.
[33]
Finally,
the respondent submitted that the applicant’s real complaint is with the
representation provided to him by his previous counsel. However, this
frustration is not a sufficient basis to set aside the Commission’s decision.
The respondent claimed that the applicant is required to live with the signed agreement
that was negotiated in good faith between the parties.
Analysis and Decision
[34]
Issue
1
What is the appropriate
standard of review?
As instructed by the Federal
Court of Appeal in Sketchley v. Canada (Attorney General), [2005]
F.C.J. No. 2056, 2005 FCA 404, a reviewing body must refrain from adopting the
standard of review used by other judges reviewing decisions of the Commission
under the same legislative provision. As such, I will begin my analysis by
engaging in my own assessment of the pragmatic and functional analysis in order
to determine the level of deference owed to the Commission in this case.
[35]
Privative
Clause
There is no privative clause in
the CHRA, nor is there any statutory right of appeal. The absence of a
privative clause is understood to be a neutral factor (Dr. Q v. College
of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003
SCC 19).
[36]
Nature
of the Question
The applicant alleges that the
Commission erred in approving the minutes of settlement under section 48 of
CHRA on the basis that no settlement had been agreed on by the parties. Thus,
the question before this Court is whether or not the Commission erred in
finding that a settlement had been agreed on by the parties. While the
determination of what constitutes a settlement is a question of law, the requirement
that it be agreed to by the parties is fact dependent. As a result, I find that
this issue is one of mixed fact and law; a mid-level of deference is owed.
[37]
Relative
Expertise
In considering the relative
expertise of the Commission in comparison to that of the Court, the nature of
the question at issue must be kept in mind. As noted in Loyer v. Air
Canada, [2006] F.C.J. No. 1473 at paragraph 47, 2006 FC 1172, the mandate
of the Commission “requires that it deal, on a daily basis, with examination
and resolution of human rights complaints.” Thus, it appears that issues of
settlement appear to fall directly within the expertise of the Commission.
However, the nature of the question at issue is whether or not the parties
agreed to the settlement. I am of the belief that this is more a question of
contract law, which falls within the expertise of the Court. This consideration
attracts a less deferential standard.
[38]
Purpose
of the Legislation and Section
Section 2 of CHRA articulates
that the purpose of the Act is to ensure equality by preventing discriminatory
practices based on a series of enumerated grounds. In Sketchley above,
the Federal Court of Appeal found that “the protection of human and individual
rights is a fundamental value in Canada and any institution,
organization or person given the mandate by law to delve into human rights
issues should be subjected to some control by judicial authorities.”
[39]
As
for the purpose of section 48, in Loyer above at paragraph 87 Justice
Mactavish made the following comments regarding the purpose of section 48:
There has been little judicial
consideration of section 48 of the Canadian Human Rights Act. However,
when the section is read in context, consistent with the aims of the Act as a
whole, and in light of the public interest mandate of the Canadian Human Rights
Commission, it is clear that the section is there to ensure that the
Commissioners themselves have input into settlements, so as to ensure that the
remedial goals of the Act are adequately addressed in the resolution of
individual complaints.
[40]
It
appears that Parliament’s intent was to give the Commission a great deal of
discretion under section 48 in approving or rejecting settlements. This
naturally points to more deference. However, the effect of the approval appears
to end the complainant’s claim with the Commission with the exception of
enforcement of the settlement found within the section under subsection 38(3).
These factors suggest a mid-level deference.
[41]
Conclusion
Having applied the four factors
of the pragmatic and functional approach, I am of the opinion that the
appropriate standard of review in this case is reasonableness simipliciter.
[42]
Issue
2
Did the CHRC
err in finding that a settlement had been agreed to by the parties as required
by
section 48 of CHRA?
In deciding whether or not the
Commission erred in finding that there existed a settlement agreed to by the
parties, the evidence before the Commission when it made its decision must be
considered.
[43]
The
issue was put before the Commission by way of the conciliator’s report dated
April 3, 2003, which reads as follows:
The parties met in conciliation on 21
February, 2006, and agreed to settle the complaint as per the attached Letter
of Understanding, signed by the parties as well as their respective legal
counsel. It was understood by the Conciliator and by the parties that the
Letter of Understanding was drafted as an interim settlement due to time
constraints. This intention is clearly set out in the preamble of the Letter of
Understanding. After the conciliation, the respondent provided some additional
information for clarification purposes and in order to address some of the
commitments in Letter of Understanding.
The formalized Minutes of Settlement,
attached, was subsequently provided to the parties, however, the complainant
has refused to sign the Minutes of Settlement.
It is recommended, pursuant to section 48
of the Canadian Human Rights Act, that the Commission approve the terms
of the settlement agreed to by the parties.
[44]
This
report shows that the Commission had both the letter of understanding and the
minutes of settlement before it, when it made its decision.
[45]
The
letter of understanding was signed by both parties as an interim settlement and
was not a final settlement as further matters had to be completed. Term 6 of
the letter of understanding states that “the Respondent agrees to provide a
letter of employment to be drafted and mutually agreed upon prior to the
signing of the Minutes of Settlement.” Term 7 states that “the Respondent will
endeavour to identify the key activities/positions prior to the signing of the
Minutes of Settlement.”
The inclusion of the
requirement that these tasks be completed before the signing of the minutes of
settlement and the inclusion of the requirement in term 6 that the letter of
employment be “mutually agreed upon” support the conclusion that the letter of
understanding was only a preliminary document. These requirements provided the
applicant with the guarantee that if he was not satisfied with the letter of
employment or the key activities/positions identified, he had the option to
show his dissatisfaction by not signing the minutes of settlement.
[46]
The
respondent submits that this simply was not the case and that these documents did
not require the applicant’s approval. I cannot agree with this statement. These
requirements were included for a reason and to ignore their presence would deny
the applicant his right to approve or disprove these documents by signing or
refusing to sign the minutes of settlement.
[47]
As
for the minutes of settlement, the applicant refused to sign this document and
as such, I cannot accept that it constituted “a settlement agreed to by the
parties” as required by section 48 of CHRA. Furthermore, in rendering its
decision, the Commission had before it a letter from the applicant’s legal
counsel expressing that the applicant was unsatisfied with the letter of
employment and job description provided by the respondent and as such, refused
to sign the minutes of settlement.
[48]
In
my opinion, the Commission’s decision to approve the letter of understanding
and minutes of settlement under section 48 of CHRA was unreasonable. The
evidence before the Commission included a signed interim settlement that
required certain tasks be completed by the respondent and subsequently approved
by the applicant and an unsigned final settlement. In light of these
circumstances, I find that the Commission’s decision to approve the settlement
pursuant to section 48 of CHRA does not stand up to a somewhat probing
examination. Accordingly, the application for judicial review must be allowed
and the decision of the Commission dated August 11, 2006 is set aside. The
matter is referred back to the Commission to be dealt with in accordance with
the law.
[49]
The
applicant shall have his costs of the application.
JUDGMENT
[50]
IT
IS ORDERED that:
1. The application for
judicial review is allowed, the decision of the Commission is set aside, and
the matter is referred back to the Commission to be dealt with in accordance
with the law.
2. The applicant shall
have his costs of the application.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
Canadian Human Rights Act, R.S.C. 1985, c. H-6:
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2. The purpose of this Act is to extend
the laws in Canada to give effect, within the purview of matters coming
within the legislative authority of Parliament, to the principle that all
individuals should have an opportunity equal with other individuals to make
for themselves the lives that they are able and wish to have and to have
their needs accommodated, consistent with their duties and obligations as
members of society, without being hindered in or prevented from doing so by
discriminatory practices based on race, national or ethnic origin, colour,
religion, age, sex, sexual orientation, marital status, family status,
disability or conviction for an offence for which a pardon has been granted.
48.(1) When,
at any stage after the filing of a complaint and before the commencement of a
hearing before a Human Rights Tribunal in respect thereof, a settlement is
agreed on by the parties, the terms of the settlement shall be referred to
the Commission for approval or rejection.
(2) If the Commission
approves or rejects the terms of a settlement referred to in subsection (1),
it shall so certify and notify the parties.
(3) A
settlement approved under this section may, for the purpose of enforcement,
be made an order of the Federal Court on application to that Court by the
Commission or a party to the settlement.
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2. La
présente loi a pour objet de compléter la législation canadienne en donnant
effet, dans le champ de compétence du Parlement du Canada, au principe
suivant : le droit de tous les individus, dans la mesure compatible avec
leurs devoirs et obligations au sein de la société, à l’égalité des chances
d’épanouissement et à la prise de mesures visant à la satisfaction de leurs
besoins, indépendamment des considérations fondées sur la race, l’origine
nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation
sexuelle, l’état matrimonial, la situation de famille, la déficience ou
l’état de personne graciée.
48.(1) Les parties qui
conviennent d’un règlement à toute étape postérieure au dépôt de la plainte,
mais avant le début de l’audience d’un tribunal des droits de la personne, en
présentent les conditions à l’approbation de la Commission.
(2)
Dans le cas prévu au paragraphe (1), la Commission certifie sa décision et la
communique aux parties.
(3)
Le règlement approuvé par la Commission peut, par requête d’une partie ou de
la Commission à la Cour fédérale, être assimilé à une ordonnance de cette
juridiction et être exécuté comme telle.
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