Docket:
T-229-13
Citation: 2014 FC 139
Ottawa, Ontario, February 11, 2014
PRESENT: The Honourable Madam Justice Bédard
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BETWEEN:
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NORM MURRAY
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Applicant
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and
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CANADIAN HUMAN RIGHTS COMMISSION
THE ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, Mr. Norm Murray, is a Black
African Canadian who has been working at the Immigration and Refugee Board
[IRB] since 1989. He holds the position of Case Officer [CO] at the group and
level of PM-01. On April 22, 2004, he filed a complaint with the Canadian Human
Rights Commission [Commission] under sections 7, 10, 12 and 14 of the Canadian
Human Rights Act, RSC, 1985, c H-6 [CHRA].
[2]
The Commission forwarded the complaint to the Canadian
Human Rights Tribunal [Tribunal] for an inquiry. In a decision dated January 4,
2013, Tribunal member Edward P. Lustig dismissed Mr. Murray’s complaint. Dealing
with a motion to dismiss the complaint filed by the IRB, the Tribunal found
that the subject matter of Mr. Murray’s complaint had previously been
adjudicated by the Public Service Staffing Tribunal [PSST] and applying the
doctrines of issue estoppel and abuse of process, the Tribunal found that
adjudicating the complaint would amount to an abuse of its process.
[3]
The applicant filed an application for a
judicial review challenging that decision under section 18.1 of the Federal
Courts Act, RSC 1985, c F-7. For the following reasons, the application is
allowed.
I. Context
[4]
Mr. Murray filed his human rights complaint on
April 24, 2004. At that time, he was working in an acting position as a Refugee
Protection Officer [RPO] at the group and level of PM‑04. The complaint was
initially brought pursuant to sections 7 and 14 of the CHRA, but was subsequently
amended to also include sections 10 and 12 of the CHRA.
[5]
The core of the applicant’s complaint related to
an incident that occurred in April, 2003 during which racist comments were allegedly
made. The complaint also included allegations of systemic discrimination, poisoned
work environment, barriers to advancement of visible minority employees and
their clustering in lower level positions, and harassment. Following a long
history, which will be discussed in my analysis, the Commission requested that
the Tribunal institute an inquiry into Mr. Murray’s complaint.
[6]
In 2007, Mr. Murray also filed two complaints
before the PSST (dated March 21, 2007 and April 4, 2007) pursuant to paragraph
77(1)(b) of the Public Service Employment Act, SC 2003, c 22, ss
12, 13 [PSEA]. These complaints related to allegations of abuse of authority in
choosing between an advertised and a non-advertised internal appointment
process and were consolidated at the IRB’s request. In his complaints, Mr. Murray alleged that the IRB’s decision to use a non-advertised appointment process to staff new Tribunal
Officers [TO] PM-05 positions (appointment process 07‑IRB-INA-03-13392)
in 2007, discriminated against him on the basis of his race. Mr. Murray argued that the IRB’s decision to favour a non-advertised process was tainted by systemic
discrimination and, therefore, constituted an abuse of authority under the
PSEA.
[7]
In a decision dated December 21, 2009 (Murray v Canada (Immigration and Refugee Board), 2009 PSST 33, 2009 LNCPSST
33 [Murray v Canada]), the PSST dismissed Mr. Murray’s complaints on the grounds that he had not established a prima facie case of
discrimination.
II. The
decision under review
[8]
Member Lustig was seized with three different
motions for orders of production of certain documents from the applicant and
from the Commission, as well as a motion from the IRB for an order dismissing
the applicant’s complaint before the Tribunal.
[9]
In his decision, Member Lustig summarized the
different proceedings initiated by the applicant, including a group grievance
filed under the Public Service Labour Relations Act, SC 2003, c 22, s 2 that
had yet to be heard, and the complaints filed before the PSST.
[10]
The Tribunal identified the issues raised by the
IRB’s motion to dismiss, as follows:
A. On what basis can the Tribunal dismiss a complaint prior to
conducting a full hearing on the merits?
B. Does paragraph 40.1(2)(b) of the Act limit the
Tribunal’s ability to consider the complaint?
C. Does subsection 54.1(2) of the Act limit the Tribunal’s
ability to consider the complaint?
D. Is there reason to dismiss the complaint on the principles of issue
estoppel or abuse of process?
E. In the alternative, if the complaint is not dismissed for any reason
above, is there reason to limit the scope of the inquiry?
[11]
First, the Tribunal concluded that it had
jurisdiction to deal with the motion in advance of a full hearing on the
merits. With respect to the second and third issues, the Tribunal concluded
that neither paragraph 40.1(2)(b) nor subsection 54.1(2) of the CHRA limited
the Tribunal’s ability to consider the applicant’s complaint. These three findings
are not at issue in this application.
[12]
The Tribunal then went on to deal with the
fourth issue, namely whether there were reason to dismiss the applicant’s
complaint based on the principles of issue estoppel or abuse of process. The
Tribunal indicated that it based its assessment on the principles outlined by
the Supreme Court of Canada in British Columbia (Workers’ Compensation
Board) v Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 [Figliola] and by
the Federal Court of Appeal in Canada (Human Rights Commission) v Canadian
Transportation Agency, 2011 FCA 332, [2011] FCJ No 1685 [Morten].
[13]
Relying on Figliola, the Tribunal
indicated that the object of the doctrines of issue estoppel, abuse of process,
and collateral attack was to prevent unfairness by precluding an abuse of the
decision-making process, and cited the principles underlying these doctrines as
outlined by the Supreme Court. The Tribunal also cited the three-prong test applicable
to trigger the application of issue estoppel, and canvassed the questions it
was tasked to answer as follows:
66. Based on these principles, a tribunal determining a request that it not
hear a proceeding, because the subject matter of the proceeding has previously
been the subject of adjudication by another tribunal, should ask the following
questions:
• whether there was concurrent
jurisdiction to decide human rights issues;
• whether the previously decided legal
issue was essentially the same as what is being complained of to the Tribunal;
and,
• whether there was an opportunity for the
complainants or their privies to know the case to be met and have the chance to
meet it, regardless of how closely the previous process procedurally mirrored
the one the Tribunal prefers or uses itself.
(see Figliola at para 37)
According to a majority of the Supreme Court: “At the end of the day, it
is really a question of whether it makes sense to expend public and private
resources on the relitigation of what is essentially the same dispute” (Figliola
at para 37).
[14]
The Tribunal focussed its analysis on the
proceedings before the PSST. Responding to the first question and having regard
to sections 77 and 80 of the PSEA, Member Lustig concluded that the PSST had
concurrent jurisdiction to decide human rights issues.
[15]
With respect to the second question, Member
Lustig found that the PSST had essentially decided the same legal issue
(systemic race barriers within the IRB) as the one that was at issue in Mr. Murray’s human rights complaint. His reasoning can be found in the following excerpt from his
decision:
75. While the adverse effects of
the alleged systemic discrimination may be different before the Tribunal than
they were before the PSST, including the number of people affected, the
underlying issue remains the same: whether the IRB has engaged in a
discriminatory practice against Mr. Murray as a result of alleged systemic practices
based on race. The PSST has already concluded that the Complainant has
insufficient evidence to establish that there exists systemic race based
barriers within the IRB. As outlined above, the fact that the PSST was
examining whether there was discrimination in relation to a single appointment
process did not change the nature of this finding. The PSST first determined
that there was insufficient evidence to establish the existence of systemic
barriers, before moving on to whether that evidence established discrimination
in the particular circumstances of section 77 of the PSEA.
In the current complaint, the Complainant again puts in issue the existence of
systemic race based barriers within the IRB, and that those barriers have
resulted in discrimination against him. As the PSST has previously decided that
the Complainant has insufficient evidence to establish the existence of
systemic race based barriers within the IRB, I find the PSST has decided
essentially the same legal issue as what is currently being complained of to
the Tribunal.
[…]
78. In applying the doctrines of issue estoppel/abuse of
process, and the principles outlined in Figliola, I
find that the subject matter of the current proceeding has previously been the
subject of adjudication by the PSST. Therefore, as adjudicating the present
complaint would amount to an abuse of the Tribunal's process, it should be
dismissed.
[emphasis in
original]
[16]
Member Lustig also found that the applicant had
an opportunity to know the case he had to meet before the PSST and had a chance
to meet it. In conclusion, Member Lustig determined that the conditions for
applying the doctrines of issue estoppel/abuse of process were triggered and
that it would constitute an abuse of the Tribunal’s process to deal with Mr. Murray’s complaint.
III. Issues
[17]
This application raises the issue of whether the
Tribunal’s decision to dismiss Mr. Murray’s complaint on the basis of the
doctrines of issue estoppel and/or abuse of process was reasonable.
IV. Standard of review
[18]
The parties are in agreement that the Tribunal’s
decision involved the exercise of discretion and should be examined under the
reasonableness standard of review. I agree that reasonableness is the
appropriate standard of review.
[19]
However, the applicant and the Attorney General
diverge as to the scope of possible acceptable outcomes available to the
Tribunal. The applicant contends that because the Tribunal’s decision involved
the application of common law finality doctrines to human rights matters, the
range of possible outcomes should be narrow given that it involves a great legal
content. He relies on several authorities among which Catalyst Paper Corp v
North Cowichan (District), 2012 SCC 2 at paras 17-18 and 23, [2012] 1 S.C.R. 5;
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59,
[2009] 1 S.C.R. 339 [Khosa]; Canada (Human Rights Commission) v Canada
(Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 [Mowat], First
Nations Child and Family Caring Society of Canada v Canada (Attorney General),
2013 FCA 75 at paras 14-15, [2013] FCJ No 249; and Canada (Attorney General)
v Abraham, 2012 FCA 266 at paras 42-48, [2012] FCJ No 1324 [Abraham].
[20]
The Attorney General, on the contrary, argues that
the Tribunal should be allowed a broader range of acceptable outcomes because it
is the master of its own procedure and because the issue raised in the motion
to dismiss was discretionary and involved the possibility of an abuse of its
own process. The issue fell directly within the Tribunal’s authority and
expertise and involved a factual and policy assessment with little legal content.
The Attorney General relies on Khosa, Abraham and Canada
(Canadian Human Rights Commission) v Canada Post Corp, 2004 FC 81 at paras
13-14, [2004] FCJ No 439, aff’d 2004 FCA 363, [2004] FCJ No 1792.
[21]
In my view, it is not necessary to identify the
range of possible outcomes that were open to the Tribunal as I am of the view
that the Tribunal’s decision is not one that “falls within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law” (Dunsmuir v New Brunswick, 2008 SCC9, at para 47, [2008] 1 SCR
190), whatever the scope of reasonableness that is applied.
V. Positions of the parties
A. The applicant
[22]
The applicant argues that the circumstances of
this case do not satisfy the three-part test established in Figliola and
that the Tribunal erred in concluding that the issue before the PSST was
essentially the same as the one raised in his human rights complaint.
[23]
First, Mr. Murray argues that the entirety of
his human rights complaint was forwarded to the Tribunal for inquiry, and that
it contains issues, namely allegations of harassment and discrimination against
him personally, that did not overlap in any way with the PSST complaints. Mr.
Murray insists that the scope of the Tribunal’s jurisdiction is determined by
the request for an inquiry that the Commission addresses to the Tribunal. In
this case, the letter sent by the Commission to the Tribunal’s Chairperson did
not restrict the scope of the inquiry it requested. As a result, the entirety of
the complaint was referred to the Tribunal and not only the issue of systemic
discrimination. The applicant relies on Basudde v Canada (Health Canada),
2005 CHRT 21 at para 4, [2005] CHRD No 18; Côté v Canada (Royal
Canadian Mounted Police), 2003 CHRT 32 at paras 12-13, [2003] CHRD No 39;
and Gover and the Canada Border Services Agency, 2013 CHRT 14 at paras
38 and 45, [2013] CHRD No 14.
[24]
Second, the applicant argues that even if the
Tribunal was only seized with the portions of his complaint that were sent back
for re-investigation by Justice Hansen’s Order (which Order was issued on
consent after the applicant sought a judicial review of the Commission’s
decision to dismiss the applicant’s human rights complaint), the
Tribunal erred in concluding that the PSST had adjudicated essentially the same
issues as those raised in his human rights complaint. The
applicant contends that the PSST’s jurisdiction was limited to the narrow issue
of whether there was an abuse of authority based on discrimination in the
particular appointment process chosen to fill the new TO PM-05 positions
(whether the choice of a non-advertised appointment process was tainted with
discrimination), whereas the human rights complaint raised much broader issues
of systemic discrimination. The applicant insists that the PSST did not address
and, had no authority to address broader issues of discrimination that fell
outside the specific appointment process at issue. The applicant relies on Alexander
v Canada (Attorney General), 2011 FC 1278 at paras 68-71, [2011] FCJ No
1560; and Brown v The Commissioner of Correctional Service Canada, 2012
PSST 0017 at para 23, 2012 LNCPSST 17. Furthermore, the issues raised in each
complaint occurred in different timeframes (2003-2004 for the human rights
complaint and 2006-2007 for the PSST complaints) and, on that basis only, the
complaints could not have been found to encompass essentially the same issues.
In addition, the applicant contends that the scope of the human rights
complaint was still at issue as the parties had yet to exchange particulars.
The applicant also asserts that there are significant differences in the
remedies that the PSST and the Tribunal can order.
[25]
In addition to arguing that the issues before the
PSST and the Tribunal were different, the applicant argues that the Tribunal
erred in not conducting a fairness analysis as dictated by the Supreme Court of
Canada in Danyluk v Ainsworth Technologies Inc, 2001 SCC 44, [2001] 2
SCR 460 [Danyluk] and in Penner v Niagara (Regional Police Services
Board), 2013 SCC 19, [2013] SCJ No 19 [Penner].
B. The Commission
[26]
The Commission supports the arguments presented
by the applicant and maintains that the issues before the PSST and the Tribunal
were significantly different. The issues before the PSST were limited in both time
and scope, whereas the issues before the Tribunal involved broad allegations of
discrimination and harassment.
[27]
However, the Commission insists that the central
focus in this application should be placed on the Tribunal’s failure to exercise
its discretion to determine whether the application of the doctrine of issue
estoppel was appropriate in the particular circumstances of Mr. Murray’s
complaint, and whether its application would result in unfairness or injustice
as instructed by the Supreme Court of Canada in Danyluk and Penner.
[28]
The Commission argues that in Penner, the
Supreme Court clearly indicated that the doctrine of issue estoppel should not
be applied mechanically, and that each case requires an exercise of discretion
even where the three pre-conditions for applying the doctrine are met. In the
Commission’s view, the Tribunal did not address the present issues in light of
these principles and dismissed Mr. Murray’s human rights complaint without
analyzing whether it would be fair to use the result of the PSST’s decision to
preclude Mr. Murray’s entire human rights complaint.
[29]
The Commission contends that nothing in the PSEA
could suggest that the PSST’s decision would be conclusive of Mr. Murray’s
entire human rights complaint. The Commission insists that the PSEA regime is
not intended to foreclose access to the Tribunal, and the Tribunal failed to
consider Mr. Murray’s expectation about the impact of his PSST complaint on his
human rights complaint.
[30]
The Commission insists that while both the
Tribunal and the PSST have concurrent jurisdiction regarding human rights
matters, the scope and purpose of their respective jurisdiction is different.
Further, the CHRA provides broader remedial powers to prevent and eliminate
discrimination. The PSST also has remedial powers but they are limited, and do
not include the broad remedies available to the Tribunal under the CHRA. In
addition, the PSST has no jurisdiction to deal with human rights issues that
are not related to a specific staffing process.
C. The Attorney General
[31]
The Attorney General submits that Member Lustig
exercised his discretion appropriately and
that his decision is reasonable and falls within the range of acceptable
outcomes.
[32]
The Attorney General argues that it was reasonable,
in the circumstances of this case, for the Tribunal to determine that the
allegations of systemic discrimination covered by the human rights complaint before
it were essentially the same as those raised in the PSST complaints, and that
it would be an abuse of the Tribunal’s process to inquire into Mr. Murray’s
human rights complaint. The Attorney General submits that the Tribunal’s
decision accords with the principles outlined in Figliola and in Morten.
[33]
First, the Attorney General submits that the
applicant is wrong in his assertion that the entirety of his human rights
complaint was referred to the Tribunal. The Attorney General argues that over a
period of 8 years, and as a result of the decisions made by the Commission and
the Order of Justice Hansen, the scope of Mr. Murray’s human rights complaint
was narrowed and limited to specific allegations of systemic discrimination,
namely those relating to employment barriers and the clustering of visible
minority employees in lower level positions. The Attorney General referred the
Court to Kowalski v Ryder Integrated Logistics, 2009 CHRT 22 at para 10,
[2009] CHRD No 22.
[34]
Second, the Attorney General rebuts the
applicant’s argument that the scope of the human rights complaint had yet to be
determined because the parties had not yet exchanged particulars and
that Member Lustig’s decision was pre-mature. The Attorney General
takes the position that the applicant had the opportunity to provide details of
his complaint but choose not to do so.
[35]
Third, the Attorney General contends that it is
clear from the Tribunal’s decision that Member Lustig understood the parameters
that he had to apply, namely the principles outlined in Figliola, as
well as the scope of both Mr. Murray’s human rights complaint and his PSST
complaints.
[36]
The Attorney General insists that although the
PSST was seized with complaints that related to a specific staffing process, Mr.
Murray himself raised allegations of systemic discrimination which were wide
ranging and broad enough to encompass the same allegations of systemic
discrimination that form the core of his human rights complaint. In short, Mr.
Murray framed his PSST complaints in such a manner that his allegations of
systemic discrimination were central to his complaints. The allegations that the
IRB’s abuse of authority in the choice of a non-advertised process was the
result of systemic discrimination required the PSST to first determine whether
there was systemic discrimination at the IRB, and second, to link the systemic
discrimination to Mr. Murray’s circumstances. For the Attorney General, this
issue of systemic discrimination in the human rights complaint is therefore essentially
the same in both proceedings, namely that IRB’s practices create barriers for employment
opportunities which, in turn, create a clustering of visible minority employees
in lower level positions.
[37]
The Attorney General also contends that Mr.
Murray adduced evidence before the PSST to substantiate his allegations of systemic
discrimination and clustering of visible minority employees in lower level
jobs. That evidence was broad ranging and covered a period of more than a
decade, which included the timeframe involved in Mr. Murray’s human rights
complaint. On that specific issue, the Attorney General referred the Court to
paragraphs 87 and 91 to 98 of the PSST’s decision.
[38]
The Attorney General also relies on the
following excerpt from Dr. Agocs’ report which was filed before the PSST:
[m]y analysis of
systemic racial discrimination surrounding Mr. Murray’s complaint makes
reference to three diagnostic elements: numerical representations, employment
policies and practices (or employment systems), and organizational culture
[cite omitted]. The issues raised in Mr. Murray’s complaint mainly concern
employment systems. This analysis begins with a discussion of Mr. Murray’s
complaint regarding the specific process used to staff the Tribunal Officer
positions. This staffing process is then situated within the larger
organizational context of the IRB, Toronto Region, where a pattern of
clustering of visible minorities at low levels in the hierarchy, specifically
at the PM01 level, has been documented for at least a decade. […]
[emphasis in original]
(para
55 of the Attorney General’s Memorandum of Fact and Law)
[39]
In addition, the Attorney General contends that
the Tribunal dealt with the issue of the differences in the timeframe covered
by each complaint and made a reasonable finding in determining that because Mr.
Murray filed his human rights complaint first, he knew the barriers that were
allegedly causing systemic discrimination, and he had the opportunity to have
those allegations addressed by the PSST.
[40]
The Attorney General also submits that the
Tribunal could not have applied the principles enunciated in Penner, as it
was issued after the Tribunal rendered its decision. However, the Attorney
General maintains that the Penner decision would not have impacted the
Tribunal’s decision. The Attorney General insists that in Penner, the
Supreme Court did not overturn the principles outlined in Figliola.
Rather, the Court expanded on how a tribunal should exercise its discretion and
conduct a proper fairness analysis when applying the doctrine of issue
estoppel. The Attorney General insists that the Tribunal made a reasonable
policy finding when it determined that “it does not make sense to expend public
and private resources on the re-litigation of what is essentially the same
allegation.” (para 77 of the Tribunal’s decision).
[41]
The Attorney General further insists that in Penner,
the Court asserted that injustice could occur from using the result of one
proceeding to preclude another proceeding “where there is a significant
difference between the purposes, processes or stakes involved in the two
proceedings.” (para 42). In the Attorney General’s view, the differences
between the processes were more significant in the proceedings involved in Penner
than they are between the PSST and the Tribunal proceedings in the case at bar.
In short, for the Attorney General, the distinctions between proceedings in
this case are not so significant as to bring into question the fairness of
Member Lustig’s exercise of discretion.
[42]
The Attorney General finally insists that in Penner,
the Court squarely focussed on the doctrine of estoppel whereas in this case
both doctrines of issue estoppel and abuse of process are at play.
VI. Analysis
[43]
Member Lustig concluded that because the PSST
dealt with essentially the same issues as those raised in Mr. Murray’s human
rights complaint, it would constitute an abuse of the Tribunal’s process to
also deal with it.
[44]
I find it useful to summarize the guiding
principles to the application of the doctrines of issue estoppel and abuse of
process before assessing how the Tribunal applied them to Mr. Murray’s
complaint.
[45]
In Danyluk, the Supreme Court outlined
the principles of finality underlying the doctrine of issue estoppel and
reiterated the three pre-conditions for its operation:
18. The
law rightly seeks a finality to litigation. To advance that objective, it
requires litigants to put their best foot forward to establish the truth of
their allegations when first called upon to do so. A litigant, to use the
vernacular, is only entitled to one bite at the cherry. […] A person should
only be vexed once in the same cause. Duplicative litigation, potential
inconsistent results, undue costs, and inconclusive proceedings are to be
avoided.
[…]
25. The preconditions to the operation of issue estoppel were set out by
Dickson J. in Angle, supra, at p. 254:
(1) that the same question has been
decided;
(2) that the judicial decision
which is said to create the estoppel was final; and,
(3) that the parties to the
judicial decision or their privies were the same persons as the parties to the
proceedings in which the estoppel is raised or their privies.
[46]
The Court also stated that issue estoppel must be assessed under a
two-step analysis. The first step requires the court or the tribunal to
determine whether the three pre-conditions are met. If the conditions are met,
the decision-maker must then, as a second tier, determine as a matter of
discretion whether the doctrine should be applied in the specific circumstances
of the case:
33. The rules governing issue estoppel should not be
mechanically applied. The underlying purpose is to balance the public interest
in the finality of litigation with the public interest in ensuring that justice
is done on the facts of a particular case. (There are corresponding private
interests.) The first step is to determine whether the moving party (in this
case the respondent) has established the preconditions to the operation of
issue estoppel set out by Dickson J. in Angle, supra. If
successful, the court must still determine whether, as a matter of discretion,
issue estoppel ought to be applied: British Columbia (Minister
of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 (C.A.), at para. 32; Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at paras. 38-39; Braithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust
Fund (1999), 176 N.S.R. (2d) 173 (C.A.), at para. 56. [emphasis in
original]
[…]
63. In Bugbusters,
supra, Finch J.A. (now C.J.B.C.) observed, at para. 32:
It must always be remembered that although the three requirements for
issue estoppel must be satisfied before it can apply, the fact that they may be
satisfied does not automatically give rise to its application. Issue estoppel
is an equitable doctrine, and as can be seen from the cases, is closely related
to abuse of process. The doctrine of issue estoppel is designed as an implement
of justice, and a protection against injustice. It inevitably calls upon the
exercise of a judicial discretion to achieve fairness according to the
circumstances of each case.
[...]
66. In my view
it was an error of principle not to address the factors for and against the
exercise of the discretion which the court clearly possessed. This is not a
situation where this Court is being asked by an appellant to substitute its
opinion for that of the motions judge or the Court of Appeal. The appellant is
entitled at some stage to appropriate consideration of the discretionary
factors and to date this has not happened.
[47]
In Figliola, the Supreme Court reiterated
the underlying principles of the finality doctrines and insisted on the need
for judicial finality:
34. At their heart, the foregoing doctrines [issue estoppel, collateral attack
and abuse of process] exist to prevent unfairness by preventing "abuse of
the decision-making process" (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common
underlying principles can be summarized as follows:
•
It is in the
interests of the public and the parties that the finality of a decision can be
relied on (Danyluk, at para. 18; Boucher, at para. 35).
•
Respect for the
finality of a judicial or administrative decision increases fairness and the
integrity of the courts, administrative tribunals and the administration of
justice; on the other hand, relitigation of issues that have been previously
decided in an appropriate forum may undermine confidence in this fairness and
integrity by creating inconsistent results and unnecessarily duplicative
proceedings (Toronto (City), at paras. 38 and 51).
•
The method of
challenging the validity or correctness of a judicial or administrative
decision should be through the appeal or judicial review mechanisms that are
intended by the legislature (Boucher, at para. 35; Danyluk, at
para. 74).
•
Parties should not
circumvent the appropriate review mechanism by using other forums to challenge
a judicial or administrative decision (TeleZone, at para. 61; Boucher,
at para. 35; Garland, at para. 72).
•
Avoiding unnecessary
relitigation avoids an unnecessary expenditure of resources (Toronto
(City), at paras. 37 and 51).
[48]
The doctrine of abuse of process, and its
interaction with the general doctrine of res judicata, was extensively
discussed by Justice Arbour in Toronto (City) v Canadian Union of Public
Employees (CUPE), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 [Toronto]:
37. In the context that interests us here, the doctrine of abuse of process
engages “the inherent power of the court to prevent the misuse of its
procedure, in a way that would ... bring the administration of justice into disrepute”
(Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per
Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)).
[…]
As Goudge J.A.’s comments indicate, Canadian courts have applied the
doctrine of abuse of process to preclude relitigation in circumstances where
the strict requirements of issue estoppel (typically the privity/mutuality
requirements) are not met, but where allowing the litigation to proceed would
nonetheless violate such principles as judicial economy, consistency, finality
and the integrity of the administration of justice. […]
[49]
Justice Arbour went on to state at para 2, that the discretion aspect
that applies to prevent the issue estoppel from creating an unfair or unjust
situation, should equally apply to the doctrine of abuse of process.
[50]
While the Supreme Court did not expand on the fairness analysis in Figliola,
in Penner it elaborated on the discretionary application of issue
estoppel and the need for flexibility:
8. […]
The flexible approach to issue estoppel provides the court with the discretion
to refuse to apply issue estoppel if it will work an injustice, even where the
preconditions for its application have been met. However, in our respectful
view, the Court of Appeal erred in its analysis of the significant differences
between the purpose and scope of the two proceedings, and failed to consider
the reasonable expectations of the parties about the impact of the proceedings
on their broader legal rights. […]
[…]
39. Broadly speaking, the factors identified in the
jurisprudence illustrate that unfairness may arise in two main ways which
overlap and are not mutually exclusive. First, the unfairness of applying issue
estoppel may arise from the unfairness of the prior proceedings. Second, even
where the prior proceedings were conducted fairly and properly having regard to
their purposes, it may nonetheless be unfair to use the results of that process
to preclude the subsequent claim.
[…]
42. The second way in which the operation of issue estoppel may
be unfair is not so much concerned with the fairness of the prior proceedings
but with the fairness of using their results to
preclude the subsequent proceedings. Fairness, in this second sense, is a much
more nuanced enquiry. On the one hand, a party is expected to raise all
appropriate issues and is not permitted multiple opportunities to obtain a
favourable judicial determination. Finality is important both to the parties
and to the judicial system. However, even if the prior proceeding was conducted
fairly and properly having regard to its purpose, injustice may arise from
using the results to preclude the subsequent proceedings. This may occur, for
example, where there is a significant difference between the purposes, processes
or stakes involved in the two proceedings. We recognize that there will always
be differences in purpose, process and stakes between administrative and court
proceedings. In order to establish unfairness in the second sense we have
described, such differences must be significant and assessed in light of this
Court’s recognition that finality is an objective that is also important in the
administrative law context. As Doherty and Feldman JJ.A. wrote in Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at para. 39, if courts routinely declined to apply issue estoppel because the
procedural protections in the administrative proceedings do not match those
available in the courts, issue estoppel would become the exception rather than
the rule.
[emphasis in
original]
[51]
Keeping all of these principles in mind, I am of the view that the
Tribunal’s decision is not one that falls within acceptable outcomes for two
reasons. First, it was unreasonable for the Tribunal to
conclude that the PSST had decided essentially the same issues as those raised
in Mr. Murray’s human rights complaint. Second, if the Tribunal’s finding that
the pre-conditions for applying the doctrine of issue estoppel were met, or
that the applicability of the doctrine of abuse of process could be triggered, it
erred by not asking itself whether it would be fair to apply the doctrines in
the specific circumstances of this case and prevent Mr. Murray from having his
human rights complaint investigated by the Tribunal.
[52]
The Tribunal found that both proceedings involved essentially the same
issues because in both complaints, the underlying issues related to whether the
IRB had engaged in a discriminatory practice against Mr. Murray as a result
of systemic discriminatory practices. The Tribunal found that since the
PSST had already concluded, as a first tier of its analysis, that the applicant
had adduced insufficient evidence to conclude that there existed race based
barriers within the IRB, it had dealt with essentially the same issue as that
which was at the core of the applicant’s human rights complaint. The Tribunal
further concluded that it would not make sense to expend resources to
re-litigate the issue that had already been dealt with by the PSST:
77. Therefore, in the course of adjudicating his PSEA complaint, the Complainant had a full and ample
opportunity to present his case regarding systemic discrimination at the IRB.
Now before the Tribunal, it does not make sense to expend public and private
resources on the re-litigation of what is essentially the same allegation. The
Tribunal's role is not to "..."judicially review" another
tribunal's decision, or to reconsider a legitimately decided issue in order to
explore whether it might yield a different outcome" (Figliola
at para. 38). As the Complainant is currently doing, the proper way to
challenge the PSST's decision is through an application for judicial review.
[53]
The first step in assessing the reasonableness of the Tribunal’s finding
that both complaints raised essentially the same issues, is to determine the
scope and the subject matter involved in both complaints.
A. The human rights
complaint
[54]
The parties disagree on the scope of the allegations that were
referred to the Tribunal for inquiry. The applicant and the Commission contend
that the Tribunal was seized with the entirety of Mr. Murray’s human rights
complaint whereas the Attorney General argues that the Tribunal was only seized
with the specific allegations of clustering of visible minority employees in
lower level positions and their under-representation in permanent positions. In
my view, the history of Mr. Murray’s human rights complaint can only lead to
one conclusion: the Tribunal was seized with the specific allegations of
systemic discrimination referred to in Justice Hansen’s Order for the specific
period of March 2003 to March 2004. It is useful to summarize the history of
Mr. Murray’s complaint.
[55]
As indicated earlier, the core of Mr. Murray’s
complaint related to an incident that occurred in April 2003 during which
racist comments were allegedly made. However, his complaint also included allegations
of systemic discrimination, racism and harassment. The relevant paragraphs of
the complaint read as follows:
2. I believe that
management at the IRB, has discriminated against me, has imposed adverse
differential treatment against me, has incited others to discriminate against
me, has created and supported a poisoned work environment that makes it
difficult to do my job, to attaint career improvement, and has adversely
affected my health because of my race. As well, I believe that management at
the IRB, has systematically pursued a practices [sic] that has
effectively deprived me of employment opportunities because of my race.
[…]
18. As a union
representative and a member of the Employment Equity Committee I have often
been critical of the IRB on its practices concerning employment equity, race
relations and discrimination. The reason being that the IRB has been officially
recognized as having the largest percentage of visible minority employees in
the Federal Public Service (the IRB has used this favourable status when it
benefits the organization), yet visible minority employees do not favour well
in the IRB as they continue to be clustered at the lowest classification
levels. In addition acts of systemic racism, harassment and discriminatory
practices, which adversely affects [sic] visible minorities, are
prevalent throughout the IRB. This has been revealed in public accessible
documents the most recent being the Public Service Survey. Management know
these problems exist and have not taken the necessary steps to resolve them. I
however, had never until then, been faced with this overt form of racism and
harassment and wondered if years of neglect by management to address serious
issues of racism, discrimination and harassment was the contributing factor.
[…]
56. I believe that
management has encouraged and supported racism, harassment and discrimination
at the IRB. I believe that because of the actions of management, racism, harassment
and discriminatory practices have taken roots and have grown radically over
this 12-month period. Management’s actions over this period have caused the
workplace to be polarized along racial lines, and have poisoned the workplace
to the extent where I cannot work effectively. I am presently off on sick
leave, because of the level of stress and poison in the workplace as a result
of accumulative racist behaviour of management at the IRB over the 12-month
period. As well: my ability to do my job has suffered: my ability to pursue
promotional opportunities has suffered: my personal working relationship with
my colleagues has suffered and my personal live outside the IRB has suffered
tremendously.
[56]
In a decision dated April 13, 2005, the
Commission decided it would not immediately deal with Mr. Murray’s complaint because
an internal investigation relating to the allegation of harassment was being
conducted by the IRB. However, once the internal investigation was finalized,
the IRB determined that the applicant’s harassment complaint was not founded. On
July 4, 2005, Mr. Murray’s union asked the Commission to revive its
investigation into his complaint as he was not satisfied with the IRB’s internal
investigation conclusions.
[57]
On March 30, 2007, Mr. Andrew Sunstrum, an
investigator mandated by the Commission, recommended that the Commission deal
with the portion of the applicant’s complaint that was not addressed in the
internal investigation. Mr. Sunstrum’s report contains the following recommendation:
Analysis:
[…]
16. While the
respondent’s investigation attempted to address the complainant’s allegations
of systemic discrimination, there are a number of allegations in the complaint
form that were not addressed in the respondent’s investigation report. They
include in particular, the complainant’s allegations in paragraph #2; that the
respondent incited others to discriminate against him, and that the respondent
deprived the complainant and other visible minorities permanent employment
advancements because of his race.
Recommendation of
Internal Redress
It is recommended,
pursuant to subsection 41(1)(d) of the Canadian Human Rights Act, that
the Commission not deal with the complainant’s allegations of harassment.
Further, it is
recommended, pursuant to subsection 41(1) of the Canadian Human Rights Act,
that the Commission deal with the portion of the complaint that was not dealt
with through the respondent’s internal investigation.
[58]
This recommendation was endorsed by the
Commission in a decision dated August 10, 2007. In a letter to the IRB dated
September 19, 2007, the Commission specified that it “would only be dealing
with the allegations that Immigration and Refugee Board incited others to
discriminate against Mr. Murray, and deprived him and other visible minorities
permanent employment advancements because of his race.”
[59]
Ms. Linda Foy was mandated by the Commission to
proceed with the investigation. Following her investigation, Ms. Foy
recommended that the Commission dismiss the applicant’s complaint and made the
following recommendation:
90. It is
recommended, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act,
that the Commission dismiss the complaint because, based on the evidence
gathered at investigation,
-
the respondent has not failed to provide the
complainant with an harassment-free workplace, and
-
the respondent does not pursue a policy, rule,
practice or standard which deprives the complainant and other visible
minorities of permanent employment advancements due to their race and color
(Black).
[60]
This recommendation was endorsed by the
Commission which dismissed Mr. Murray’s complaint in a decision dated October
20, 2008.
[61]
The applicant brought an application for a
judicial review of that decision before this Court. In a consent Order dated
August 18, 2009, Justice Hansen allowed the application in part, setting aside
a portion of the Commission’s decision and referred specific allegations of the
complaint back for further consideration. The Order reads as follows:
UPON motion made by the Respondent in writing and without personal
appearance, pursuant to Rule 369 of the Federal Courts Rules, SOR\98-106
for an order:
1. Allowing the application for judicial review in part;
2. Setting aside the decision dated October 20, 2008 by the Canadian
Human Rights Commission (“Commission”), in so far as it relates to the
allegations of systemic discrimination, more precisely the allegations of
clustering of visible minorities as described in paragraphs 57 to 63 and 67 to
73 of the Investigation Report dated June 9, 2008 written by Linda Foy on the
following basis:
a) the investigation into the allegations of clustering of visible
minorities in lower status positions ands underrepresentation of visible
minorities in permanent positions at the Immigration and Refugee Board (“IRB”)
Toronto Regional Office during the period of 13 months preceding the filing of
the complaint with the Commission was not thorough and thus constituted a
breach of procedural fairness.
3. Referring the matter back to the Commission for supplemental
investigation conducted by a new investigator in the above allegations; and
4. There will be no costs.
AND UPON reading the Consent of the parties and the Written Representations
of the Respondent;
THE COURT ORDERS
THAT:
1. The Application for judicial review is allowed in part;
2. The Commission’s decision of October 20, 2008 is quashed in so far
as it relates to the allegations of systemic discrimination as described in
paragraph 3 below and as it relates to paragraph 57 to 63 and 67 to 73 of the Investigation
Report dated June 9, 2008 written by Linda Foy.
3. The matter if systemic discrimination is remitted back to the
Commission for a supplemental investigation by a new investigator, examining
the situation of visible minorities at the IRB Toronto Regional Office during
the period of 12 months preceding the filing of the Complaint with specific
reference to:
a. Clustering of visible minorities in lower status positions;
b. Underrepresentation of visible minorities in permanent positions.
4. All of which is
without costs.
[62]
Paragraphs 57 to 63 of Ms. Foy’s investigation
report relate to the applicant’s allegations that the IRB only provided visible
minorities with acting positions. Paragraphs 67 to 73 of that report relate to
the allegation that visible minority employees have been clustered in lower
level positions.
[63]
An investigation was conducted by Mr. Dean
Steacy following the Order issued by Justice Hansen and he prepared a
report dated March 14, 2011. It appears from his report that his investigation
was limited to the two specific allegations mentioned in Justice Hansen’s Order,
namely the clustering of visible minority employees in lower level positions
and the under-representation of visible minorities in permanent positions. As
specified by Justice Hansen, the investigation was also clearly focussed on the
12-month period that preceded the filing of the applicant’s complaint.
[64]
Following his investigation, Mr. Steacy found
that there was evidence indicating that, during the period of March 2003 to
March 2004, visible minority employees appeared to have been clustered at lower
level positions and acting positions. He recommended that the Commission
request that the Tribunal institute an inquiry into the complaint. His
recommendation reads as follows:
40. It is
recommended, pursuant to paragraph 44(3)(a) of the Canadian Human Rights Act,
that the Commission request that the Chairperson of the Canadian Human Rights
Tribunal institute an inquiry into the complaint because:
-
The evidence gathered indicates that from March
1, 2003 to March 17, 2004, visible minorities within the IRB’s Toronto regional
office, appear to be clustered in lower level positions in the PM, AS, and CR
categories.
-
The evidence gathered shows that visible minorities
within the IRB’s Toronto regional office, when provided acting opportunities,
were provided the acting opportunities mainly within the lower categories.
-
The evidence gathered also shows that within the
IRB Toronto regional office, that a barrier may exist that prohibits PM-01s
from advancing within the IRB.
-
The evidence gathered shows that within the
IRB’s Toronto regional office, visible minorities appear to be
under-represented within the higher levels such as the PM-05 and PM-06 levels.
[65]
The Commission endorsed Mr. Steacy’s
recommendation. In a letter dated July 29, 2011, addressed to the President of
the IRB, the Commission informed the IRB of its decision to request that the
Chairperson of the Tribunal institute an inquiry into Mr. Murray’s complaint.
The letter specifically reiterated Mr. Steacy’s recommendations.
[66]
On the same date, the Commission wrote a letter
to the Chairperson of the Tribunal. That letter did not contain the same specifications
as the letter to the IRB. It only specified that the Commission, pursuant to
paragraph 44(3)(2) of the CHRA, had decided to request that the Tribunal
“institute an inquiry into the complaint as it is satisfied that, having regard
to all the circumstances, an inquiry is warranted.”
[67]
I agree that, in principle, the letter that the Commission sends to
the Tribunal defines the scope of “what” is being referred to the Tribunal for
an inquiry. Furthermore, I agree that the letter sent to the Tribunal in this case
did not specify that only portions of Mr. Murray’s complaint were referred for
inquiry. However, the Commission’s letter cannot be disconnected from the long
history of the complaint and the context into which the Tribunal was being
seized of Mr. Murray’s complaint. In the specific circumstances of this case, I
find the authorities on which the applicant relied to be of little use.
[68]
Over the years, and more specifically as a result of Justice
Hansen’s Order, which was rendered on consent by all parties, the scope
of Mr. Murray’s complaint was clearly narrowed to specific allegations of
systemic discriminations in a specific timeframe. As a result, only specific portions
of the complaint were re-investigated by the Commission and only the
allegations covered by the supplemental investigation could be referred to the
Tribunal. These allegations related to the clustering of visible minority
employees in lower level positions and their under-representation in permanent
higher level positions at the Toronto Regional Office of the IRB for the
specific period of March 2003 to March 2004. It is important to keep in mind
that Justice Hansen’s Order allowed the application for judicial review in
part and set aside the Commission’s decision dated October 20, 2008,
dismissing the applicant’s complaint only insofar as it related to the
specific allegations specified in the Order. Those allegations were specific in
their nature and in their timeframes. The remainder of the Commission’s
decision dated April 20, 2008 to dismiss the applicant’s complaint was not set
aside or changed in any way by Justice Hansen’s Order. Since the Commission was
directed by the Court to conduct a supplemental investigation only into
specific allegations, the Commission’ subsequent request that the Tribunal
institute an inquiry into Mr. Murray’s complaint could not have extended to all
the allegations that were contained in Mr. Murray’s initial complaint.
B. The
PSST complaints
[69]
Let us now look at the scope of the PSST
complaints. Mr. Murray filed two complaints before the PSST dated March 21,
2007 and April 4, 2007. These complaints were filed under paragraph 77(1)(b)
of the PSEA which relates to allegations of abuse of authority in choosing
between an advertised and a non-advertised internal appointment process. The
two complaints were consolidated at the IRB’s request. In his complaints, Mr.
Murray alleged that the IRB’s decision to use a non-advertised appointment
process to staff new Tribunal Officers [TO] PM-05 positions (appointment
process 07-IRB-INA-03-13392) in 2007, discriminated against him on the basis of
his race. Section 80 of the CHRA clearly provides that the PSST has jurisdiction
to interpret and apply the CHRA where a complaint raises human rights issues.
Mr. Murray argued that the IRB’s decision to favour a non-advertised process
was tainted with systemic discrimination and, therefore, that decision
constituted an abuse of authority under the PSEA.
[70]
The IRB’s decision to choose a non-advertised
appointment process for that specific staffing process arose in the context of
a reorganization where the IRB decided to integrate its support operations.
This reorganization resulted in the replacement of the Refugee Protection
Officers [RPO] positions that were at the PM-04 group and level, by TO
positions at the PM-05 group and level. The IRB chose to conduct a
non-advertised appointment process because it wanted to staff those new
positions among the incumbents of the RPO positions that were at the PM-04
group and level. The IRB asserted that it proceeded in this manner in the interest
of fairness to the RPOs incumbents because it eliminated the need to declare
them surplus and ensured their ongoing employment. Therefore, only the
incumbents of RPO positions were eligible to participate in the staffing
process. Mr. Murray was not eligible to participate in the appointment process
because his position was one of CO at the PM-01 group and level and not a RPO. While
Mr. Murray had acted in a RPO position (PM-04) for a period of 3 years, his
acting appointment had ended due to lack of work at least 6 months before the
reorganization was launched.
[71]
The context of this reorganization and the
reasons for the IRB’s choice to go with a non-advertised appointment process is
explained in great detail in the PSST’s decision and need not be further expanded
for the purpose of this application.
[72]
In its decision dated December 21, 2009 (Murray v Canada), the PSST framed Mr. Murray’s allegations as follows:
1. […] He alleges
that this non-advertised process constitutes systemic discrimination where job
barriers result in clustering of visible minorities in CO positions at the
PM-01 group and level. He asserts that this clustering at the IRB has been
recognized in several employment systems review reports.
[73]
Before the PSST, Mr. Murray essentially alleged
that the decision to conduct a non-advertised appointment process was tainted by
the systemic discriminatory practices that existed at the IRB, and that this
decision directly affected him as a member of a visible minority group. Therefore,
the IRB’s decision constituted an abuse of authority.
[74]
The PSST set out the following issues for
determination:
6.
The Tribunal must determine the following issues:
(i)
Does the complainant have a right to bring this
complaint?
(ii)
Has the complainant established a prima facie
case of discrimination in the choice of a non-advertised appointment process?
(iii) If so, has the respondent provided a reasonable explanation for its
choice of a non-advertised appointment process?
[75]
The PSST outlined the principles that would
guide its analysis. Further, it stated that the applicant had the burden of
establishing that the alleged discrimination was at least one factor that
influenced the IRB’s decision to conduct a non-advertised appointment process.
The PSST added that there was no direct evidence of discrimination in relation
to the 2007 appointment process, but that Mr. Murray could nevertheless satisfy
his burden by leading circumstantial evidence. It added that evidence of
systemic discrimination was admissible as circumstantial evidence of direct
individual discrimination.
[76]
The PSST indicated that “[c]onsiderable evidence
was provided at the hearing to establish that there has been, and continues to
be, clustering of visible minorities at the lower level positions of the IRB,
such as the PM-01 level.” (para 88 of the decision). The PSST found that Mr.
Murray had established that there “has been clustering of visible minorities at
the lower levels of the PM groups at the IRB” (para 90 of the decision), but
that he had not adduced sufficient evidence to substantiate his allegation that
there existed systemic discrimination at the IRB and, therefore, that this
clustering was a result of systemic discriminatory practices. The PSST added
that even if there had been sufficient evidence to establish systemic
discriminatory barriers to the promotion of visible minority employees in the
TO positions, Mr. Murray would nonetheless have had to demonstrate a link
between that systemic discrimination and individual discrimination in his own situation,
which he failed to do. The PSST’s reasoning appears in the following excerpt of
its decision:
103. The evidence
must establish first that systemic barriers exist, and, secondly, that there is
a link between the evidence of systemic barriers and evidence of individual
discrimination against the complainant, based on his race. Both evidentiary
steps are necessary. Without both, there is no prima facie case. In this
case, not only is there insufficient evidence that there was systemic
discrimination but, even if there was, there is insufficient evidence before
the Tribunal that links the alleged systemic barriers to individual
discrimination against the complainant.
[77]
The PSST further concluded that it would have
dismissed the complaints even if the applicant had established a prima facie
case of discrimination, because the IRB had met its burden of establishing a
reasonable non-discriminatory explanation for choosing a non-advertised
appointment process.
VII. Application
[78]
Having regard to both proceedings, I fail to see how the issues raised in
both complaints can be found to be essentially the same. The fact that in both
complaints Mr. Murray based his allegations on systemic discrimination, is
insufficient to conclude that the PSST had already dealt with the core of Mr.
Murray’s allegations in his human rights complaint. In the human rights
complaint, Mr. Murray raised broad issues of systemic discrimination involving
employment barriers for visible minority employees and clustering those
employees in lower level positions at the Toronto Regional Office for the
specific period of March 2003 to March 2004. When the Tribunal rendered its
decision, the parties had yet to exchange particulars that would have
delineated further these general allegations.
[79]
The fact that the complaints brought before the PSST also involved
general allegations of systemic discrimination, employment barriers and
clustering of visible minority employees in lower level positions, is insufficient
to conclude that the issues were essentially the same. It is not disputed that
the PSST had the authority to apply the CHRA, and that an abuse of authority
under section 77 of the PSEA could stem from discrimination; however, the
PSST’s jurisdiction and focus was to determine whether the specific decision
made by the IRB in 2007 to staff the TO officers by using a non-advertised
appointment process was tainted by discrimination. The PSST’s jurisdiction was
limited to a specific decision made three years after the timeframe involved in
the human rights complaint.
[80]
I acknowledge that the allegation that the IRB’s decision to launch a
non-advertised appointment process in 2007 was tainted with systemic
discrimination, led the PSST to first assess whether there was systemic
discriminatory practices within the IRB Toronto Regional Office. The evidence
adduced in that regard was wide ranging and covered a broad period of time.
However, in my view it did not specifically refer to or focus on the systemic
discrimination that allegedly occurred in the 2003-2004 period.
[81]
Evidence was led in relation to an Employment
Systems Review [ESR] that the IRB conducted in 1997 to comply with the Employment
Equity Act, SC 1995, c 44. That review aimed at identifying
employment barriers affecting designated employment equity groups, and an audit
by the Commission followed the review. In an interim report dated August 1999,
the Commission found that the ESR was deficient in its assessment of employment
barriers for some of the groups, including the visible minority group. The IRB
mandated Hara Associates Inc. to follow up on the ESR and its report dated October
15, 2000, [Hara Report], was introduced into evidence. Ms. Carole Cyr, the
Director General, Human Resources at the IRB, and the person responsible for
employment equity, testified about the Hara Report. She indicated that one of
the key issues of the Hara Report was to determine whether there was clustering
of visible minority employees in the lower levels of the PM group. In that
regard, she stated that “the Hara Report indicated that the promotion of
visible minority candidates was more than representative, and that the
clustering in the lower levels was due to the filling of senior positions from
other departments.” She also indicated that there are some areas in need of
improvement. Ms. Cyr testified that in 2001, the Commission found that
the IRB was in compliance with the requirements of the Employment Equity Act,
and in that regard, a document entitled “Hara Report Recommendations and
Subsequent Actions taken” was entered in evidence.
[82]
The applicant testified about the clustering of
visible minorities in the Case Officer positions. He stated that “the
clustering of visible minorities is not intentional, however, only one employee
in this group is not a visible minority, and most have been in this function
since 1991.” Two colleagues of the applicant also testified about their
experience at the IRB.
[83]
The applicant also adduced evidence of an expert
witness, Dr. Carol Agocs. Dr. Agocs was called upon to testify on the issue of
systemic discrimination. She prepared a report dated September 12, 2008, entitled
“Analysis of Possible Impact of Systemic Racial Discrimination in the Case of
Norm Murray, Immigration and Refugee Board.” Dr. Agocs based her analysis on a
variety of documents such as the Commission Employment Equity Compliance Review
of June 2001, the IRB Corporate Integrated Human Resources Plan: A Multiyear
Vision, 2008-2009 to 2010-2011 and documents that she found on the Treasury
Board web site. Dr. Agocs reviewed the exclusion of the applicant for consideration
in the appointment process to staff the TO positions. In that regard, she
relied upon the applicant’s allegations and a Job Opportunity Advertisement
open to all employees of the Federal Public Service in 2008. In her
testimony, she indicated that “she found a number of job barriers that,
together, she believes constitute a pattern of systemic discrimination.” (para
44 of the PSST decision). It appears from the PSST decision that Dr. Agocs did
not have access to the list of the 36 employees who were appointed to the TO
positions in the non-advertised appointment process (12 of which
self-identified as members of minorities); nor did she have access to a
document entitled “Visible minority representation from 2006-2008 within the
Central region compared to National” which showed an increase in visible
minority representation from 21.5% to 25% in the PM-04 level and from 0% to
25.58% at the PM-06 level between 2006 and 2008.
[84]
In my mind, the evidence presented to the PSST was not specific enough
to conclude that the PSST was dealing with the specific allegations involved in
Mr. Murray’s human rights complaint that related to the March 2003 to March 2004
period.
[85]
Moreover, nothing in the PSST decision allows me to conclude that the
PSST made findings in relation to the specific allegations about employment
barriers and clustering of visible minorities at the IRB in 2003-2004. The PSST
concluded that there was evidence to support the allegations that there had
been a clustering of visible minority employees in lower level positions, but
that there was insufficient evidence to support the allegation that the
clustering was the result of systemic discrimination. The Tribunal did not
specify the period covered by its findings, but given that the complaints
related to a staffing process that occurred in 2007, I cannot infer from the
PSST findings which were made in relation to the specific staffing process of
2007, and from the evidence led before the PSST, that it specifically found that
there was no systemic discrimination at the IRB Toronto Regional Office during
March 2003 to March 2004. This question was not the focus of the PSST’s
decision which related to a timeframe contemporary to the decision made in
2007.
[86]
The Attorney General argues that the Tribunal appropriately dealt with
the difference in timeframe covered by each complaint, by concluding that in
the context of his PSST complaints, Mr. Murray knew what barriers where
allegedly causing systemic discrimination and nothing prevented him from
presenting evidence that related to the allegations covered by his human rights
complaint. On that point, the Tribunal made the following finding:
76. […] While the focus of the evidence before the PSST was on whether the
employment practices of the IRB created a "bad" cluster of visible
minority employees at the lower ranks of the IRB - which is also one of the
systemic barriers identified by the Complainant in the present complaint - there
was nothing preventing the Complainant from adducing evidence regarding other
alleged systemic barriers at the IRB, which may now form part of the present
complaint. This is reinforced by the fact that the PSST complaint was filed
and adjudicated after the filing of the present complaint. Any alleged systemic
barriers at the IRB forming the basis of the present complaint were known to
the Complainant prior to adjudicating the PSST complaint. These alleged
systemic barriers, and any evidence thereof, could have, and should have, been
brought forward before the PSST as part of the Complainant's circumstantial
evidence of systemic discrimination in that case.
[emphasis
added]
[87]
I find this reasoning to be flawed. It would not have been relevant for
the applicant to adduce evidence before the PSST in relation to “other alleged
barriers” at the IRB which may form part of the human rights complaint, but
which were not relevant to the specific decision that the PSST was asked to
determine. The practices that existed at the IRB in 2003-2004 were not the
focus of the PSST complaints. The fact that systemic discrimination may or may
not have existed in the period of 2003-2004 could have been, at best, one of
several elements relevant to the determination of whether a decision made in 2007
was tainted by a context of systemic discrimination practices. Nothing leads me
to believe that the practices that existed at the IRB in March 2003 to March
2004 had any bearing on the PSST’s decision. At the very least, it was
certainly not central to its finding that the evidence was insufficient to
substantiate Mr. Murray’s allegation of systemic discrimination.
[88]
In Danyluk, the Supreme Court revisited the requirement to
conclude that issues have been dealt with in previous proceedings. I find that
the principles outlined by the Court directly apply to the case at bar:
24. Issue estoppel was
more particularly defined by Middleton J.A. of the Ontario Court of Appeal in McIntosh v. Parent, [1924] 4 D.L.R.
420, at p. 422:
When a question is litigated, the judgment of the Court is a final
determination as between the parties and their privies. Any right, question, or
fact distinctly put in issue and directly determined by a Court of
competent jurisdiction as a ground of recovery, or as an answer to a claim set
up, cannot be re-tried in a subsequent suit between the same parties or their
privies, though for a different cause of action. The right, question, or fact,
once determined, must, as between them, be taken to be conclusively established
so long as the judgment remains. [Emphasis added.]
This statement was adopted by Laskin J. (later C.J.), dissenting in Angle,
supra, at pp. 267-68. This description of the issues subject to estoppel (“[a]ny
right, question or fact distinctly put in issue and directly determined") is
more stringent than the formulation in some of the older cases for cause of
action estoppel (e.g., “all matters which were, or might properly have been,
brought into litigation”, Farwell, supra, at p. 558). Dickson J. (later C.J.),
speaking for the majority in Angle, supra, at p. 255, subscribed to the more
stringent definition for the purpose of issue estoppel. "It will
not suffice”he said, “if the question arose collaterally or incidentally in the
earlier proceedings or is one which must be inferred by argument from the
judgment.” The question out of which the estoppel is said to arise must have
been "fundamental to the decision arrived at" in the earlier
proceeding. In other words, as discussed below, the estoppel extends to the
material facts and the conclusions of law or of mixed fact and law (“the
questions”) that were necessarily (even if not explicitly) determined in the
earlier proceedings.
[emphasis
added]
[89]
I find that the allegations of systemic discrimination at the IRB, for the
period of 2003-2004, were not central to the issues raised in the PSST
complaints relating to the choice on a non-advertised appointment process three
years later in 2007. As stated earlier, the evidence led before the PSST was
general and did not focus specifically on that period of 2003-2004.
[90]
Moreover, the fact that Mr. Murray could have led additional evidence
about the alleged discriminatory practices of the IRB for the period of March
2003 to March 2004 before the PSST is insufficient to conclude that the issues
in both proceedings were essentially the same. The time- frame covered by both
sets of complaints was different and evidence concerning the IRB’s practices in
2003-2004 could have been one among several elements, but certainly not the
central element to determine whether there were discriminatory practices in
place in 2007.
[91]
I therefore conclude that it was unreasonable for the Tribunal to find Mr.
Murray’s complaints before both the PSST and the Tribunal raised essentially
the same issues. The PSST determined that there was insufficient evidence to
conclude that a staffing process in 2007 was tainted by systemic discriminatory
practices. I fail to see how dealing with allegations of systemic
discrimination, namely the clustering of visible minority employees at lower
level positions and their under-representation in permanent positions during
the specific period of March 2003 to March 2004, would constitute a
re-litigation of Mr. Murray’s allegations that a staffing process conducted in
2007 was tainted with systemic discrimination. Even if the existence or
non-existence of systemic discrimination in March 2003 to March 2004 could have
some relevance in determining whether there was a history and/or a continuity
of discriminatory employment practices at the IRB, it was not central to a
determination as to whether the 2007 decision to conduct a non-advertised
appointment process was tainted by such practices. Moreover and as stated
earlier, the evidence adduced and discussed was not specific enough to the
period covered by Mr. Murray’s human rights complaint.
[92]
Even if I am wrong in determining that the Tribunal’s finding that the
issues in both proceedings were essentially the same is unreasonable, I am of
the view that the Tribunal made a second error by failing to address the
fairness issue to determine whether it was appropriate to apply the doctrines
of issue estoppel and/or abuse of process to the specific circumstances of Mr.
Murray’s complaint.
[93]
The Tribunal could not have benefited from the Penner judgment as
it was issued after the Tribunal rendered its decision. Nevertheless, the
Tribunal should have exercised its discretion to determine whether it was
appropriate and fair to apply the doctrines as directed in Danyluk and
Toronto. In my view, Figliola did not overturn the principle of
fairness enunciated in Danyluk and Toronto. The first paragraph
of Justice Abella’s reasons in Figliola is of relevance:
Litigants
hope to have their legal issues resolved as equitably and expeditiously as
possible by an authoritative adjudicator. Subject only to rights of review or
appeal, they expect, in the interests of fairness, to be able to rely on the
outcome as final and binding. What they do not expect is to have those same
issues relitigated by a different adjudicator in a different forum at the
request of a losing party seeking a different result. On the other hand, it may
sometimes be the case that justice demands fresh litigation.
[94]
Furthermore, even if it did, the principles outlined in Penner now
apply and the Tribunal failed to turn its mind to whether the application of
issue estoppel or abuse of process would be unfair and unjust.
[95]
The Attorney General argues that the Tribunal made a policy decision
when it determined that “it does not make sense to expend public and private
resources on the re-litigation of what is essentially the same allegation.” (para
77 of the Tribunal’s decision).
[96]
First and as stated above, the Tribunal erred in concluding that dealing
with Mr. Murray’s human rights complaint would constitute a re-litigation of the
allegations of his PSST complaint. Second, in its policy finding, the Tribunal
failed to address whether it would be fair to use the PSST’s conclusion to
preclude Mr. Murray’s human rights complaint from being dealt with. A similar
situation occurred in Danyluk where the Court concluded as follows:
66. In my view it was
an error of principle not to address the factors for and against the exercise
of the discretion which the court clearly possessed. This is not a situation
where this Court is being asked by an appellant to substitute its opinion for
that of the motions judge or the Court of Appeal. The appellant is entitled at
some stage to appropriate consideration of the discretionary factors and to
date this has not happened.
[97]
The Attorney General argues that even if Penner had been issued
before the Tribunal’s decision, it would probably have not had an impact on its
decision because the differences in the proceedings before the PSST and the
Tribunal were not significant enough to trigger the fairness analysis. As
stated earlier, I consider that the issues raised and the focus of each
proceeding were significantly different even if some “facts” could be said to have
some relevance to both complaints, namely the IRB’s employment practices during
the period of March 2003 to March 2004. Furthermore, given that the PSST’s
mandate related to a finding in respect of a staffing process that occurred in
2007, it bears the question as to whether it would be fair to use the PSST’s decision
to prevent Mr. Murray from having his human rights complaint dealt with because
some evidence covering the period of 2003-2004 had already been adduced before
the PSST. Clearly, Mr. Murray could not have expected that by filing a complaint
challenging a staffing decision in 2007, it would put and end to a complaint
filed in 2004 that related to general allegations of systemic discrimination in
the form of employment barriers and clustering of visible minorities in lower
level positions for the period of March 2003 to April 2004.
[98]
In my view, the Tribunal mechanically applied the pre-conditions for
estoppel and/or abuse of process and failed to proceed to the second step of
the analysis. As stated in Danyluk at paragraph 62,
many factors should be considered in the determination of if and when the Tribunal’s
discretion should apply. The Tribunal’s considerations in this case were too
narrow-minded; other factors and general considerations should have been
assessed by the Tribunal to determine whether it was appropriate and fair to
apply the doctrines of issue estoppel or abuse of process. I therefore conclude
that the Tribunal’s decision was unreasonable and should be overturned.
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