Docket:
T-230-13
Citation: 2013 FC 1120
Vancouver, British Columbia, November 4, 2013
PRESENT: The Honourable Mr. Justice Hughes
|
Docket:
T-230-13
|
|
BETWEEN:
|
|
LYNETTE SUZANNE DERKSEN
|
|
Applicant
|
|
and
|
|
CORRECTIONAL SERVICE OF CANADA
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision of the Canadian Human Rights Commission dated December 20, 2012,
wherein the Commission decided under paragraph 41(1(d) of the Canadian Human
Rights Act, RSC 1985, c H-6, not to deal with the Applicant’s complaint.
For the reasons that follow, I am dismissing this application.
[2]
The Applicant Lynette Suzanne Derksen commenced
employment with the Respondent Correctional Service of Canada in November 2001.
In 2006, she was diagnosed with a disability in respect of which she underwent
surgery in 2007. She returned to work in March 2008, but continued to
experience limitations in the performance of her duties. In January 2011, she undertook
an engagement as Chief of Administrative Services at one of the Respondent’s
institutions. Later in 2011, she was advised by her doctor to cease working
pending further surgery. A series of events occurred in May 2011 between the
Applicant, her supervisor and others at the Institution concerning the
Applicant’s attendance at work, the training of a replacement and related
issues. As a result, the applicant filed a harassment complaint against her
supervisor with the Respondent on May 24, 2011.
[3]
On September 1, 2011, the Applicant was advised
that her harassment complaint would be investigated and, in the meantime, the
Applicant would be temporarily reassigned to other duties. A Mr. Larocque
was named as the investigator to conduct the investigation into the harassment
complaint. Around the same time, the Applicant contacted the Canadian Human
Rights Commission about the filing of a complaint of discrimination due to her
disability. As a result of her discussions with a representative of the
Commission, the Applicant was under the impression that the harassment
complaint and proposed discrimination complaint, while related, would be
treated as separate issues.
[4]
The Applicant was provided with a preliminary
report respecting the harassment complaint in early December 2011. She made
submissions as to this preliminary report in late December and endeavoured to
file further evidence which evidence the investigator would not accept as it
was filed too late and of marginal significance. On February 6, 2012, a final
report was issued dismissing the harassment complaint as vexatious with a
disciplinary review of the Applicant’s actions to follow. I am advised by
both counsel that a judicial review of this decision was filed by the Applicant
in this Court, but it was dismissed as being filed too late.
[5]
In the meantime, on January 20, 2012, some two
weeks before the release of the decision in the harassment complaint, the
applicant filed a discrimination complaint with the Canadian Human Rights
Commission. This is the complaint that ultimately led to the decision under
review here.
[6]
In respect of the discrimination complaint, the
Applicant was advised by the Commission by letter dated March 21, 2012,
that it would be considering the matter under the provisions of subsection
41(1)(d) of the Canadian Human Rights Act and provided a preliminary report.
On October 10, 2012, the Applicant provided her position statement in respect
of the preliminary report to the Commission.
[7]
The Respondent provided its submissions to the
Commission on November 8, 2012.
[8]
On December 5, 2012, the Commission issued its
decision adopting the conclusion set out in the report that the discrimination
complaint was unfounded, that the Applicant had the opportunity to address her
human rights issues through another process, namely, the harassment complaint.
ISSUES
[9]
The Applicant has raised the following issues:
1. What
is the standard of review applicable to the decision at issue?
2. Was
the Applicant afforded procedural fairness?
3. Should
the decision to dismiss be set aside and sent back for a new decision?
STANDARD OF REVIEW
[10]
Each of the parties agree that the standard of
review is reasonableness within the range of possible outcomes as stated by the
Supreme Court of Canada in Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at
paragraphs 46-47.
[11]
However, the matter goes further in cases where
the Court is considering a decision by the Canadian Human Rights Commission
under section 41(1)(d) of the Canadian Human Rights Act. As discussed by
Justice Kane in her decision in O’Grady v Bell Canada, 2012 FC 1448, the
Commission in acting under subsection 41(1)(d) of the Act provides a screening
role, the function of the Court in reviewing such a decision is not to explore
the merits of the case, the Court’s role is to determine if the screening
decision was reasonable. She wrote at paragraph 37:
The
Commission plays a "screening" role; it investigates complaints to
determine whether the complaint should be considered by the Canadian Human
Rights Tribunal. The Tribunal's role is to examine the complaint on its
merits; to determine whether the complaint has been established and the appropriate
remedy. The Commission does not perform this function. In reviewing a
decision of the Commission to refuse to deal with a complaint, the
Court cannot go beyond the Commission's role and explore the merits of the
complaint. The Court can only consider whether the Commission's
"screening" decision was reasonable.
PROCEDURAL FAIRNESS
[12]
I find that the Applicant was provided procedural
fairness. The Applicant was provided with a draft report and made substantial
comments as to that report before a final report was issued.
[13]
In its Memorandum filed with the Court and in
oral argument, the Applicant took issue with some of the procedures taken in
the harassment proceedings. This is not a judicial review of those proceedings
and this proceeding should not be used as a collateral attack on those
proceedings or the decision made there.
WAS THE DECISION TO DISMISS REASONABLE?
[14]
I find that the report made in the
discrimination proceedings is to be considered as the reasons for which the
Commission made its decision to dismiss.
[15]
That report was thorough and clearly had in mind
the issues and determinations made in the harassment proceedings. I
particularly have in mind the analysis portion of the report at paragraphs 25
through 40 of the report leading to the conclusion and recommendations at
paragraphs 41 and 42 of the report. I will not repeat any of those paragraphs
here. I find that the analysis is thorough, that the conclusion is reasonable
as is the recommendation.
[16]
I find no basis upon which to set aside the
decision of the Commission in reliance upon the report.
COSTS
[17]
The Respondent submitted that costs in the sum
of $500 would be appropriate. The Applicant submitted that no costs should be
awarded in the event that it was unsuccessful.
[18]
The sum of $500 is very reasonable. Any
applicant in a case such as this should be aware that there are cost
consequences in losing the case. I will award costs in favour of the Respondent
in the sum of $500.
Email this Content