Date: 20071019
Docket: T-1915-06
Citation: 2007 FC 1078
Ottawa, Ontario, October 19,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
TOINI
JARVINEN
Applicant
and
CITY
OF OTTAWA (OC TRANSPO)
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 September 25, 2006 within which the
Commission decided, pursuant to paragraph 44(3)(b) of the Canadian Human
Rights Act, R.S.C. 1985, c. H-6 (the Act) to take no further proceedings in
the complaint filed by the applicant against the respondent.
[2]
The
applicant requests:
1. an order declaring
that the decision of the Commission to deny the applicant’s request for relief
under the Act was invalid and unlawful;
2. an order declaring
that the respondent acted without jurisdiction, or beyond jurisdiction, in
denying the applicant’s request for relief under the Act;
3. an order setting
aside the decision contained in the Commission’s letter dated September 25,
2006 confirming that the applicant did not qualify for compensation;
4. an order declaring that
the respondent is estopped from denying the applicant’s request for relief
under the Act;
5. an order prohibiting
the respondent from taking any actions to assess or prosecute the applicant;
and
6. costs.
Background
[3]
The
applicant, Toini Jarvinen, was employed as a bus operator by OC Transpo from
1985 until 2005. During her employment, the applicant was a member of
Amalgamated Transit Union, Local 279 (the Union).
[4]
In
1994, the applicant underwent surgery on her neck and was absent from work for
a period of six months. During this time, she was provided with long-term
disability benefits in accordance with the collective agreement between her
employer and the Union.
[5]
Between
1999 and 2001, the applicant suffered from a chronic back injury and was unable
to perform her duties as a bus operator. The applicant once again applied for
and received long-term disability benefits.
[6]
In
February 2002, the applicant, who was still unable to perform her duties as a
bus operator, was terminated from her employment. On February 14, 2002, the
applicant (through the Union) grieved the respondent’s decision to
terminate her employment. She alleged that the respondent had discriminated
against her by failing to accommodate her chronic back pain.
[7]
On
July 8, 2002, the respondent attempted to accommodate the applicant’s injury by
reinstating her in a temporary assignment as a Park and Ride Attendant. On
September 10, 2002, the applicant was granted retroactive payment of wages for
the period when the respondent had terminated her employment. The applicant’s
temporary position as a Park and Ride Attendant ended on October 30, 2002.
[8]
From
November 2002 to March 2005, the applicant completed a few more temporary
assignments with the respondent which usually lasted a couple of months in
length, but was unemployed between these assignments. The applicant voluntarily
retired in March 2005 upon reaching the age of sixty-five.
[9]
On
July 3, 2003, the applicant filed a complaint with the Commission against the
respondent. The applicant’s complaint alleged that the respondent had
discriminated against her in employment by failing to accommodate her
disability. On April 13, 2004, the Commission decided pursuant to paragraph
41(1)(a) of the Act, that it would not deal with the complaint at that time as
the applicant had not exhausted the grievance procedures readily available to
her.
[10]
Meanwhile,
the applicant’s grievance (filed through her union in February 2002) was
proceeding to binding third party arbitration as per the collective agreement
between her employer and the Union. The arbitration lasted from October 21,
2003 to December 8, 2005. The applicant’s grievance was heard
simultaneously with that of another employee because of related issues.
Throughout the arbitration proceedings, the applicant was represented by the Union.
[11]
The
arbitration panel first heard evidence regarding the respondent’s accommodation
process. The arbitration panel then heard evidence regarding the other
employee’s grievance. Lastly, the panel heard evidence on possible jobs for the
applicant that would accommodate her disability. The Union cited two positions
it felt would best accommodate the applicant. The applicant was directly
involved in the selection of these positions. The respondent submitted that the
applicant was not suitable for either position and provided reasons. At this
point, the Union felt that
the best outcome for the applicant was a settlement that guaranteed her some
compensation for the past discrimination it felt she had experienced.
[12]
The
grievance was resolved by an agreement reached between the Union and the
respondent on December 8, 2005. The minutes of settlement were signed by the Union and the
respondent. The applicant refused to sign them. The Union and respondent
intended that the settlement would resolve “all outstanding matters related to
the [complainant’s] employment and her retirement from employment, including
but not limited to her claim of discrimination pursuant to the Canadian
Human Rights Act.” As the applicant had since retired, there was no need
for employment accommodation. The only issue was that of compensation. The
agreement provided that the respondent pay the applicant $12,000 as a retiring
allowance, and $5,000 (without deduction) as damages for the alleged claims of
discrimination. The applicant cashed the $5,000 cheque despite not signing the
minutes of settlement.
[13]
On
January 25, 2006, the applicant returned to the Commission. She requested that
the Commission now deal with her complaint as she was not satisfied with the
outcome at arbitration. An investigation was ordered and both the applicant and
respondent made written submissions. The investigator issued the investigation
report on June 22, 2006 and recommended that pursuant to paragraph 44(3)(b) of
the Act, the Commission take no further proceedings in the complaint. In
response to the recommendation, the applicant made written submissions to the
Commission dated July 20, 2006. By way of a letter dated September 25, 2006,
the Commission informed the parties that pursuant to paragraph 44(3)(b), it had
decided not to continue with the investigation. This is the judicial review of
the Commission’s decision.
Board’s Reasons for
Decision
[14]
In
a letter to the parties dated September 25, 2006, the Commission decided
pursuant to paragraph 44(3)(b) of the Act, to take no further proceedings in
the complaint because:
1. the parties had
reached a settlement; and
2. the evidence did not
indicate that there was a public interest in conducting further investigation
into this complaint.
[15]
In
Sketchley v. Canada (Attorney General), [2005]
F.C.J. No. 2056, 2005 FCA 404 at paragraph 37, the Court held that given the
cursory nature of Commission decisions under section 44 of the Act, investigation
reports must be read as the Commission’s reasons. As such, I have outlined the
reasons provided in the investigation report.
[16]
As
expected, the investigator’s reasons provide more insight into the
recommendation made to the Commission. The investigator made the following
findings regarding the grievance and arbitration procedure:
- the
grievance and arbitration procedure dealt with the same issues as raised
in the complaint, this included the same human rights issues and thus, the
same information and evidence;
- the
applicant had legal representation from the union throughout the
arbitration, however, this also meant that the applicant did not have the
opportunity to speak on her own behalf during the proceedings;
- the
parties reviewed the alleged failure to accommodate during the
arbitration;
- as the
applicant had retired, there were no ongoing accommodation issues;
- the
Board of Arbitration never made a ruling on whether the alleged
discrimination had occurred; and
- despite
the applicant’s dissatisfaction with the results, the arbitration
proceedings were now closed and could not be reopened.
[17]
The
investigator made the following findings regarding the settlement:
- the Union and the
respondent reached a settlement;
- the Union
and the respondent intended the settlement to resolve all outstanding
issues related to the grievance and human rights complaint;
- the
reasons for the settlement were explained to the applicant;
- the applicant
refused to sign the settlement; and
- the
applicant had cashed the settlement cheque for $5,000.
[18]
The
investigator made the following findings regarding the positions of the
parties:
- the applicant is
not satisfied with the result of arbitration, and feels the Commission
should investigate her complaint.
- the respondent (and
the Union) feel
that the arbitration proceedings, and the resulting settlement, have fully
resolved the applicant’s human rights concerns.
Issues
[19]
The
applicant submitted the following issue for consideration:
1. Did the Commission
satisfy the requirements of procedural fairness in its dealings with the
applicant?
[20]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Commission
err in deciding pursuant to paragraph 44(3)(b) of the Act, not to take any
further proceedings in the complaint?
Applicant’s Submissions
[21]
The
applicant submitted that the appropriate standard of review in this case is
reasonableness (see Lanno v. Canada Customs and Revenue Agency, [2005]
F.C.J. No. 714). The applicant argued that the Commission erred in deciding not
to take further action regarding her complaint. The applicant submitted that
the information and evidence before the Commission proved that the arbitration
process had not settled the applicant’s accommodation issue, nor had the
arbitration given the applicant the opportunity to have her complaint heard.
With this evidence before it, the Commission made an unreasonable decision.
[22]
The
applicant also argued that the Commission made erroneous findings of fact.
Specifically, the applicant noted that in the Commission’s decision, it found
that the parties had reached a settlement. The applicant submitted that this
was an erroneous finding of fact because the applicant never signed the minutes
of settlement.
[23]
The
applicant also submitted that the Commission breached the duty of procedural
fairness by failing to consider all the evidence before it.
Respondent’s Submissions
[24]
The
respondent submitted that given the appropriate standard of review, the
Commission decision should not be interfered with by this Court.
[25]
The
respondent submitted that the Act grants the Commission a remarkable degree of
latitude when performing its screening function pursuant to paragraph 44(3)(b).
The respondent also submitted that as a general rule Parliament did not want
the courts at this stage to intervene lightly in the decisions of the
Commission (see Bell Canada v. Communications,
Energy and Paperworkers Union of Canada, [1991] 1 F.C.
113 at 38 (QL)). The respondent submitted that Cozma v. Canada (Attorney
General), [2006]
F.C.J. No. 1881 at 18 (QL), held that the appropriate standard of review for a
decision under paragraph 44(3)(b) of the Act is patently unreasonableness. A decision
is only found to be patently unreasonable if it is so flawed that no amount of
curial deference can justify letting it stand (see Ryan v. Law
Society (New Brunswick), [2003] 1
S.C.R. 247).
[26]
The
respondent submitted that the Commission, through the investigator, engaged in
an extensive review of the evidence and arguments of both parties. The evidence
disclosed that the applicant’s claim had been settled through arbitration and
consequently, it was open to the Commission to render the decision it did.
[27]
The
respondent also submitted that the evidence supported the finding that there
was no public interest in taking further proceedings on the complaint. The
complaint was highly fact specific and as such, any decision would have little
precedential value. Lastly, the respondent submitted that the determination of
what is public interest is wholly within the jurisdiction of the Commission.
Analysis and Decision
[28]
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 judge 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.
Privative Clause
[29]
There
is no privative clause in the Canadian Human Rights Act, nor is there
any statutory right of appeal. The absence of a privative clause is understood
to be a neutral factor (see Dr. Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19).
Nature of the Question
[30]
The
applicant has raised two separate questions. Firstly, the applicant submitted
that the Commission erred in dismissing the applicant’s complaint. This
involves a discretionary decision, and as such, a high-level of deference is
warranted. The second issued raised by the applicant is whether the Commission
made an error in finding that the parties had reached a settlement. This is a
question of mixed law and fact and attracts a mid-level of deference.
Relative Expertise
[31]
The
applicant submitted that the Commission erred in dismissing the applicant’s
complaint. The issue of whether or not a complaint should proceed in the
process described under the Act is within the expertise of the Commission. In Cooper
v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, the
Supreme Court of Canada held that the Commission’s determination that in light
of all the evidence and circumstances, further proceedings are not warranted is
a discretionary decision. The Commission is in a better place than this Court
to decide this issue and as such, a more deferential standard applies.
[32]
The
second issue raised by the applicant is whether the Commission made an error in
finding that the parties had reached a settlement. 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 the examination and resolution
of human rights complaints.” Resolution and settlement of claims is within the
expertise of the Commission. Courts are also experts in the area of determining
whether settlements have been reached. This consideration indicates that a
mid-level of deference is owed.
Purpose of the
Legislation and Provision
[33]
Section
2 of CHRA provides that the purpose of the Act is to ensure equality by
preventing discriminatory practices based on a series of enumerated grounds.
The purpose of subsection 44(3) was considered in Loyer above. In that
case, this Court said that the decision to dismiss a complaint under this
subsection effectively extinguishes a complainant’s ability to proceed further
with their complaint under the Act and consequently, a less deferential
standard is warranted.
Conclusion
[34]
Having
applied the pragmatic and functional test, I am of the opinion that the appropriate
standard of review for both questions is reasonableness.
[35]
Issue
2
Did the Commission err in
deciding pursuant to paragraph 44(3)(b) of the Act, not to take any further
proceedings in the complaint?
There was a preliminary issue
as to whether the respondent’s hearing materials had been properly served on
the applicant. After hearing the parties’ submissions, I am satisfied that the
materials were provided to the applicant with sufficient time for her to
prepare for the hearing.
[36]
In
my opinion, the Commission’s decision to dismiss the applicant’s complaint was
reasonable. In making this finding, I turn to the investigation report as it
constitutes the entirety of the information before the Commission when it
rendered its decision. I find nothing in the investigation report that requires
this Court’s intervention.
[37]
The
investigator found that the same human rights and accommodation issues in the
complaint had already been reviewed by the arbitration panel. Furthermore, the
investigator noted that the applicant had been represented by her Union
throughout the arbitration, the terms of the settlement had been explained to
the applicant, and she had cashed the settlement cheque provided by the
respondent. The investigator noted that the applicant did not speak directly to
the arbitration panel, nor was she satisfied with the settlement reached
between the respondent and the Union, but despite these findings, the
investigator recommended that the complaint be dismissed. The investigator was
satisfied that a settlement of the issues had been reached and that there was
no public interest in conducting further investigation into the complaint.
[38]
The
applicant also submitted that she never had an arbitration hearing as the
hearing was concerning the other grievor. I do not agree. The applicant’s
hearing continued the Union settled the matter as it was entitled to do as her
representative.
[39]
As
to the allegations that the applicant did not receive priority placement and
that the respondent’s witness, Troy Charter, was biased, these are matters that
should have been dealt with in the arbitration process. In any event, with
respect to the bias argument, I see no evidence in the file that would support
this allegation.
[40]
The
investigator considered a number of factors both for and against the pursuing
the complaint, but in the end, concluded that further investigation was not
warranted. Accordingly, I find the Commission’s decision to dismiss the
applicant’s complaint reasonable. There is no reviewable error on this ground.
[41]
The
application for judicial review is therefore dismissed.
JUDGMENT
[42]
IT
IS ORDERED that the application for judicial review is dismissed.
“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.
44.(1) An
investigator shall, as soon as possible after the conclusion of an
investigation, submit to the Commission a report of the findings of the
investigation.
. . .
(3) On receipt
of a report referred to in subsection (1), the Commission
(a) may
request the Chairperson of the Tribunal to institute an inquiry under section
49 into the complaint to which the report relates if the Commission is
satisfied
(i) that,
having regard to all the circumstances of the complaint, an inquiry into the
complaint is warranted, and
(ii) that the
complaint to which the report relates should not be referred pursuant to
subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to
(e); or
(b) shall
dismiss the complaint to which the report relates if it is satisfied
(i) that,
having regard to all the circumstances of the complaint, an inquiry into the
complaint is not warranted, or
(ii) that the
complaint should be dismissed on any ground mentioned in paragraphs 41(c) to
(e).
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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.
44.(1) L’enquêteur présente son
rapport à la Commission le plus tôt possible après la fin de l’enquête.
. .
.
(3)
Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission:
a)
peut demander au président du Tribunal de désigner, en application de
l’article 49, un membre pour instruire la plainte visée par le rapport, si
elle est convaincue:
(i)
d’une part, que, compte tenu des circonstances relatives à la plainte,
l’examen de celle-ci est justifié,
(ii)
d’autre part, qu’il n’y a pas lieu de renvoyer la plainte en application du
paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
b)
rejette la plainte, si elle est convaincue:
(i)
soit que, compte tenu des circonstances relatives à la plainte, l’examen de
celle-ci n’est pas justifié,
(ii)
soit que la plainte doit être rejetée pour l’un des motifs énoncés aux
alinéas 41c) à e).
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