Docket: T-652-14
Citation: 2016 FC 94
Ottawa, Ontario, February
2, 2016
PRESENT: The Honourable Mr. Justice Manson
BETWEEN:
SOLANG MUN
Applicant
and
ATTORNEY GENERAL OF CANADA AND CANADIAN ARMED
FORCES
Respondents
AMENDED
JUDGMENT
UPON an application for
judicial review of the decision dated February 19, 2014, of acting Chief
Commissioner David Langtry [the Assessor] of the Canadian Human Rights
Commission [the Commission] not to deal with the Applicant’s complaint;
AND UPON reading the material
before the Court and hearing the oral submissions of the parties;
AND UPON determining that this
application should be dismissed for the following reasons.
I.
Background
[1]
The Applicant was enrolled in the Regular
Officer Training Plan [the ROTP] of the Canadian Armed Forces [the Respondent]
and accepted a four year scholarship to attend the University of Toronto
baccalaureate pharmacy program.
[2]
The Applicant began experiencing difficulty
completing his pharmacy program simultaneously with his duties under the ROTP
and began suffering from a depressive disorder. He was diagnosed with major
depression in January of 2012.
[3]
The Applicant was subsequently placed in a
“Temporary Medical Category” [TMC] due to his depression, and as a result, was
not eligible for promotion upon graduating from his pharmacy program, contrary
to his expectations and ROTP program custom.
[4]
The Applicant began corresponding with various
of the Respondent’s supervisors in July 2012, when he learned of his TMC status
and lack of promotion.
[5]
The Applicant continued in his residency program
but experienced difficulty, failing his second and third rotations. The
residency program administrators recommended the Applicant attend a remedial
rotation. The Respondent rejected this recommendation and gave the Applicant
three options: (1) voluntary release, (2) compulsory occupation transfer, or
(3) reversion to a non-commissioned member. These options explicitly did not
take the Applicant’s medical issue into consideration.
[6]
The Applicant initiated a complaint with the
Respondent’s Ombudsman on December 31, 2012 and was reminded only that he was
ineligible for a promotion based on his TMC status.
[7]
After being refused a stay to consult a military
doctor, the Applicant chose voluntary release to continue his pharmacy career
and was granted leave without pay, on January 16, 2013.
[8]
The Applicant filed a complaint with the
Canadian Human Rights Commission on February 21, 2013, alleging the Canadian
Armed Forces discriminated against him on the basis of his disability, contrary
to sections 7 and 10 of the Canadian Human Rights Act, RSC, 1985, c H-6)
[the Act].
[9]
On July 15, 2013, the Respondent sent the
Applicant a letter confirming that upon his release in January 2013, he had
been suffering a medical condition sufficiently severe to prevent him from “complying with his obligations to the Respondent and… unable
to meet his obligations as a member of the military”. The Respondent
effectively confirmed that the Applicant was considered to have been disabled
at the time of his release.
[10]
The Commission completed a Section 40/41 Report
[Report] based on the Applicant’s allegation and the Respondent’s objection.
The Applicant and the Respondent were allowed an opportunity to respond to the
Report in December 2013. The Respondent was then allowed another opportunity to
address the Applicant’s arguments, and did so in a letter dated February 4,
2014.
[11]
In a decision dated February 19, 2014, the
Commission decided not to deal with the Applicant’s complaint, on the basis
that the Applicant should have exhausted a reasonably available grievance
system within the armed forces before commencing his application to the
Commission.
[12]
The decision of the Commission not to deal with
the Applicant’s complaint was based upon a determination that the Applicant
failed to exhaust available grievance procedures (namely the Canadian Forces
Grievance System [CFGS]), pursuant to paragraph 41(1)(a) of the Act. The
Applicant was further determined to have been aware of the system and chose not
to use it, satisfying the requirement of paragraph 42(2) of the Act that
failure to exhaust alternate procedures should be attributed to the Applicant
if the Commission is to decide not to deal with the complaint.
II.
Issue
[13]
Was the Commission’s decision not to deal with
the Applicant’s complaint reasonable?
III.
Standard of Review
[14]
The appropriate standard of review in this case
is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47, 48,
51; Panacci v Canada (Attorney General), 2014 FC 368 at para 19).
IV.
Relevant Provisions
[15]
The relevant provisions of the Canadian Human
Rights Act, RSC 1985, c H-6, are attached as Appendix A.
V.
Analysis
Was the
Commission’s decision not to deal with the Applicant’s complaint reasonable?
[16]
In considering section 41, the Commission should
decide not to deal with complaints only in “plain and obvious cases”. This
principle was articulated by Justice Rothstein in Canada Post Corp v Canada
(Canadian Human Rights Commission) (re Canadian Postmasters and Assistants
Assn) (1997), 130 FTR 241 at para 3 [Canada Post Corp]:
A decision by the Commission under section
41 is normally made at an early stage before any investigation is carried out.
Because a decision not to deal with the complaint will summarily end a matter
before the complaint is investigated, the Commission should only decide not to
deal with a complaint at this stage in plain and obvious cases.
[17]
In making a decision under paragraph 41(1)(a) of
the Act, the Commission makes two determinations:
a.
Whether the grievance or review procedure was
“reasonably available”; and
b.
Whether the complainant “ought” to exhaust the
procedure before filing a complaint under the Act.
Justice Rothstein
described the nature of these two determinations as follows:
. . . whether there is a grievance or review
procedure "reasonably available" is a question of law or mixed law
and fact, but whether the complainant "ought" to exhaust the
procedure is a question of opinion or discretion.
(Canada Post Corp, at para 6)
[18]
Decisions made by the Commission under section
41 of the Act are subjective and involve an exercise of discretion, therefore
the scope of the judicial review of such a decision is narrow. The Commission
is given the discretion to deal or not deal with a range of complaints if it is
determined the Applicant ought to have utilized another process. Further, the
Commission must be satisfied that the Applicant’s failure to utilize the
alternate process is attributable to the Applicant and not to another (sections
41-42 of the Act). Only considerations such as bad faith by the Commission,
error of law or acting on the basis of irrelevant considerations are applicable
(Canada Post Corp, at paras 4, 5).
[19]
Section 41 of the Act was designed to remove
some of the complaints from the Commission’s workload. As agreed by the
parties, the Commission should only choose to exercise this right in “plain and
obvious cases” and that such a determination involves both deciding if the
alternate grievance process was reasonably available, and if the Applicant
ought to have exhausted that process before making his complaint to the
Commission (Public Service Alliance of Canada v Canada (Attorney General),
2014 FC 393 at para 20; Canada Post Corp, at paras 3, 6).
[20]
The Applicant has presented evidence that was
not before the Commission and I agree that this evidence should not be
considered in the present judicial review. The Court will only consider the
evidence that was before the Commission when they made their determination.
[21]
The Applicant presents two reasons why they
should not be expected to use the CFGS: first, the language in the National
Defence Act is merely permissive when it discusses the grievance procedure and
not obligatory; second, the process was not ‘reasonably available’ to the
Applicant, given the inherent discriminatory nature of the Armed Forces
administrative grievance process, as it addresses the temporary medical
category. As a corollary to the second reason, the Applicant submits that when
one has regard to the history of the Applicant’s case, and the Armed Forces’ consistent
insistence that due to his status as a temporary medical category person he was
not eligible for promotion, it was inevitable that the discriminatory policy
would lead to a finding against the Applicant.
[22]
The Applicant does not dispute that he knew of
the CFGS; he states that he chose not to use it. He submits that while the
National Defence Act “entitles” a member of the Armed Forces to submit a
grievance, it does not require it. In the absence of obligatory language in the
legislation, the Applicant argues that he was free to choose whether or not he
wanted to engage the CFGS (Burgess v Ontario (Ministry of Health)
(2001), 199 DLR (4th) 295 at paras 36-39).
[23]
Unfortunately for the Applicant, regardless of
whether the process is mandatory or voluntary, the Commission was nevertheless
entitled to decide if the grievance process was a more appropriate forum to
deal with the Applicant’s complaint before being brought to the Commission.
[24]
The Applicant’s argument that the system is
optional and not obligatory is not persuasive. While the language of the
statute is permissive and entitles, but does not require one to use the CFGS,
it is open to the Commission to determine that the CFGS would be an appropriate
process for the Applicant to use, and more suitable place to deal with the
complaint at hand.
[25]
However, the Commission should have addressed
the arguments of the Applicant in his reply to the Report, dated December 16,
2013.
[26]
As stated by Justice Judith Snider (as she then
was) in Hicks v Canada (Attorney General), 2008 FC 1059 at paras 24, 25:
24 The main problem that I have with the
Commission's decision is that it does not address any of the arguments made by
Mr. Hicks in his reply of September 4, 2007. In his reply, Mr. Hicks made
extensive submissions on the topic of jurisdiction, with reference to case law
that seems to apply a less narrow view of family status and disability than was
apparently taken by the Commission. I do not know if the Commission had regard
to the issues raised in the reply or, if it did, why the Commission found these
arguments to be without merit.
25 The situation before me is very similar
to that in Johnstone. I acknowledge the arguments made by the Commission
before me that the human rights protected by the CHRA do not extend as far as
posited by Mr. Hicks. The Commission may be right. However, on the record
before me, I am not able to say with confidence that the arguments of Mr. Hicks
were heard and considered. In other words, I am not persuaded that it is plain
and obvious that there is no discrimination. Thus, whether viewed on a standard
of reasonableness or of correctness, I find that the decision cannot stand.
[27]
The Applicant also refers to the case of Conroy
v Professional Institute of the Public Service of Canada, 2012 FC 887 [Conroy]
as being “on all fours” with the facts of this case. Justice Marie-Josée Bédard
in Conroy stated, at paras 30, 41:
30 Once a
complaint is filed, the Commission must make a preliminary decision about
whether or not it will deal with the complaint by launching an investigation.
Although the Commission's decision and decision-making process should be
afforded deference (Halifax Regional Municipality, above at para 51),
the jurisprudence establishes that the Commission should be prudent in dismissing
a complaint at the pre-investigation stage. I recently had the opportunity to
discuss the need for prudence at that early stage of the process in Maracle,
above at para 40:
This approach has been endorsed by
this Court in several judgments (Comstock, above, at paras 39-40, 43; Hartjes,
above, at para 30, Hicks, above, at para 22; Michon-Hamelin v Canada
(Attorney General), 2007 FC 1258 at para 16 (available on CanLII) [Michon-Hamelin])
and I also endorse it. This approach is consistent with the Commission's
primary role under the Act as a gate-keeper responsible for assessing the
allegations of a complaint and determining whether they warrant an inquiry by
the Tribunal. In deciding whether to deal with a complaint, the Commission is
vested with a certain level of discretion but it must be wary of summarily
dismissing a complaint since the decision is made at a very early stage and
before any investigation. The question of whether a complaint falls within the
Commission's jurisdiction may, in itself, require some investigation before it
can be properly answered. It is worth noting that, at the end of the
investigation process, the Commission can again, pursuant to subparagraph
44(3)(1)(b)(ii) of the Act, dismiss a complaint for lack of jurisdiction.
41 One
must also bear in mind that rejecting a complaint at the pre-investigation
stage is an exception. In my view, the Commission must explain why it considers
that a complaint falls outside of its jurisdiction pursuant to section 41 of
the Act. This obligation to explain its decision must be adapted to the context
of each complaint. Although the Commission may not need to provide
comprehensive reasons, it must at least leave the complainant with the
impression that it considered his or her allegations before rejecting them.
This is even more important when certain arguments were not considered in the
preparation of the Section 40/41 Report and were only raised in response to the
Report. I consider that in these specific circumstances, the applicant, and the
Court, should have the assurance that the main arguments raised by the
applicant were considered by the Commission before it concluded that it was
plain and obvious that the complaint fell outside of its jurisdiction. Having
no assurance that the Commission turned its mind to these arguments, and
considering that it is not the Court's role to determine whether a complaint
warrants an investigation, I am of the view that the Court is not in a position
to determine whether the Commission's decision falls within the range of
acceptable possible outcomes.
[28]
Here, the reasons given by the Commission in
refusing to deal with the Applicant’s complaint are cryptic and do not mention
the Applicant’s arguments in response to the Report.
[29]
However, the Applicant’s arguments in respect of
the complaint process (dealing with the inherent discriminatory nature of the
Armed Forces’ administrative grievance procedure as it deals with persons
determined to be in the temporary medical category), were thoroughly dealt with
in the Report. The only substantive argument raised after the Report that was
not already dealt with was whether permissive language in the statute entitled
the Applicant to refuse to use the CFGS, making the Commission’s assertion that
he should have availed himself of it unreasonable. Respectfully, I disagree.
[30]
The Commission determined that the CFGS was
“reasonably available” to the Applicant. A plain reading of subsection 29(1) of
the National Defence Act demonstrates that the Applicant’s complaint
could have been dealt with by the CFGS. The Applicant here does not deny the
suitability of the CFGS, and instead argues a lack of neutrality and lack of
independence. These allegations are speculative at best.
[31]
Numerous statutory and other mechanisms in the
CFGS ensure its independence and impartiality: the final decision maker is the
Chief of Defence Staff or their delegate who is “considerably removed” from a
griever’s case; subsection 29(4) of the National Defence Act provides that
filing a grievance will not result in a penalty; finally, a decision can be
challenged through the Federal Court, or reviewed by the office of the Forces’
Ombudsman. Plain reading of paragraph 41(1)(a) of the Act entitles the
Commission to decide whether an applicant “ought to
exhaust grievance or review procedures otherwise reasonably available”.
There is no requirement that the Commission determine whether or not the
grievance procedure was mandatory or voluntary. If the procedures are deemed to
have been reasonably available to the Applicant then it is open to the
Commission to determine if they think the Applicant ought to have availed
themselves of it.
[32]
The Commission fulfilled its responsibility to
evaluate section 41 exceptions to deal with a complaint and reasonably
determined that a more suitable grievance procedure was available to the
complainant and they ought to have pursued it fully before submitting a
complaint to the Commission.
THIS COURT’S JUDGMENT is that:
1.
The Application is dismissed;
2.
No question is certified.
"Michael D. Manson"
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