Dockets:
T-2010-14
T-2009-14
T-2008-14
Citation: 2015 FC 1228
Ottawa, Ontario, October 29, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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Docket: T-2010-14
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BETWEEN:
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INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 500
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Applicant
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and
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LESLIE PALM
CANADIAN HUMAN RIGHTS COMMISSION
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Respondents
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Docket: T-2009-14
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AND BETWEEN:
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CLIFF WELLICOME
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Applicant
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and
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LESLIE PALM
CANADIAN HUMAN RIGHTS COMMISSION
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Respondents
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Docket: T-2008-14
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AND BETWEEN:
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RICHARD WILKINSON
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Applicant
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and
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LESLIE PALM
CANADIAN HUMAN RIGHTS COMMISSION
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Respondents
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JUDGMENT AND REASONS
[1]
The Applicants in these three matters ask the
Court to set aside a decision of the Canadian Human Rights Tribunal [the
Tribunal] dismissing a motion they brought to dismiss the human rights complaints
made against them.
Factual
Background
[2]
On March 6, 2009, Leslie. Palm filed five
separate human rights complaints with the Canadian Human Rights Commission [Commission],
alleging discrimination on the basis of sex. The complaints were against: the
International Longshore and Warehouse Union, Local 500 [the Union], Cliff
Wellicome, Richard Wilkinson, Western Stevedoring Ltd. [Western], and the
British Columbia Maritime Employers’ Association [BCMEA].
[3]
Ms. Palm was a member of the Union. The Union’s
collective agreement was with the BCMEA. Western is a member of the BCMEA and
was Ms. Palm’s employer. Mr. Wilkinson and Mr. Wellicome were two of her male
coworkers.
[4]
Ms. Palm’s complaints against the Applicants differ
slightly, although most are based on similar facts.
[5]
Her complaint against the Union alleges adverse differential
treatment, failure to provide a harassment-free work environment, and
discriminatory policy and/or practice. Specifically, she alleges that:
Local 500 discriminated against Ms. Palm and
harassed Ms. Palm by:
1. Creating and fostering a general
environment that was hostile to females;
2. Referring Ms. Palm to driving work that
equivalently qualified males would not perform;
3. Referring Ms. Palm to driving work that
required her to work longer hours to make equivalent pay compared to male
drivers with with [sic] equivalent driving experience;
4. Putting forward work allocation proposals
to Western, in March, 2008, that deprived Ms. Palm of work opportunities as
compared to males of the same ability, seniority and other relevant qualities;
5. Failing to sanction local 500 members that
harassed Ms. Palm on the basis of her sex;
6. Actively condoning sex based harassment
of Ms. Palm by members; and
7. Refusing to represent Ms. Palm in a
subsequent harassment investigation while providing representation to and on
behalf of male members.
[6]
Her complaint against Mr. Wellicome alleges that
he engaged in harassment of her on the basis of sex. Specifically, she alleges
that:
Mr. Willicome [sic] discriminated
against Ms. Palm and harassed Ms. Palm by:
1. Creating and fostering a general
environment that was hostile to females;
2. Organizing, proposing and promoting work
allocation proposals that would limit Ms. Palm to performing driving work that
equivalently qualified males would not perform;
3. Organizing, proposing and promoting work
allocation proposal [sic] that would limit Ms. Palm to driving work that
required her to work longer hours to make equivalent pay compared to male drivers
with with [sic] equivalent driving qualifications;
4. Inciting and actively condoning sex based
harassment of Ms. Palm by other members; and,
5. Inciting and causing co-worker’s [sic]
to actively discriminate against and harass Ms. Palm on the basis of her sex.
[7]
Her complaint against Mr. Wilkinson alleges that
he engaged in harassment of her on the basis of sex. These allegations are
generally similar to the allegations made against Mr. Wellicome, but also
relate to other specific incidents and conduct, including an incident in which
Mr. Wilkinson allegedly recorded Ms. Palm’s work hours in a manner that made it
appear as though she had worked more hours than she actually had. She claims
that this was done in an effort to deprive her of weekend shifts, which were
allocated to those who had worked the fewest hours during the week.
[8]
Ms. Palm also filed complaints against Western
and the BCMEA alleging adverse differential treatment, failure to provide a
harassment-free work environment, and discriminatory policy and/or practices.
[9]
Subsequent to the initial complaints against
these five, Ms. Palm amended her complaints to allege retaliation against her
by the Union and Mr. Wellicome for bringing her human rights complaints.
[10]
The Commission referred the five complaints to
the Tribunal for an inquiry on December 9, 2010. In January 2011, Western and
the BCMEA settled Ms. Palm’s complaints against them. On December 10, 2013,
the Applicants filed a notice of motion with the Tribunal to dismiss the
complaints made against them.
[11]
The Applicants filed 41 pages of written
submissions in support of the motion and more than 160 pages of exhibits. They
characterize the basis of their motion to dismiss in this manner: “Each of the Applicants argued that Ms. Palm’s complaints
were legally impossible and procedurally abusive and should be dismissed prior
to a full hearing on the merits.” The motion was accurately
characterized by the parties as a request to dismiss the complaints as an abuse
of process.
[12]
The Commission provided written submissions in
response to the motion as did Ms. Palm. The Applicants then provided written
reply.
Issues
[13]
The Applicants raise three issues: Whether the
Tribunal failed to exercise its jurisdiction, whether the decision was
reasonable, and whether it proceeded in a procedurally unfair manner.
A.
Jurisdiction
[14]
The Applicants submit that the Tribunal failed
to exercise its jurisdiction because it failed or refused to decide the
motion. I disagree.
[15]
The final paragraph of the Tribunal’s reasons reads
as follows: “For the reasons given above, the
respondent’s [sic] motion to dismiss the complainant’s complaints is
dismissed.” That statement clearly indicates that the Tribunal did
decide the motion; it decided to dismiss it.
[16]
The Applicants point to and rely on the
following statement of the Tribunal at paragraph 68 as indicating that,
notwithstanding its clear statement that the motion was dismissed, the Tribunal
failed to deal with it:
Without limiting the seriousness of the allegations and criticisms contained
in the respondent’s motion to dismiss in order to conclude, according
to the respondent’s submissions,
that there is an abuse of process, the Tribunal finds
that to dispose
of this case based on this motion without giving the
complainant an opportunity to fully and completely present
her evidence with respect to the complaints she filed against the respondents would be significantly detrimental to the complainant’s rights in this case.
[17]
This statement must be read in light of the
reasons of the Tribunal as a whole and not taken out of context.
[18]
As a preliminary matter, there is no question
that the Tribunal has jurisdiction to “determine a
substantive issue in advance of a full hearing of the complaint on its merits:”
First Nations Child and Family Caring Society of Canada v Canada (Attorney
General), 2012 FC 445 at para 131. As was observed by the Court in Canada
(Canadian Human Rights Commission) v Canada Post Corp, 2004 FC 81 at paras
18 and 19:
Finally, it is hard to fathom a reason why
it would be in anyone’s interest to have the Tribunal hold a hearing in cases
in [sic] where it considers that such a hearing would amount to an abuse
of its process.
Accordingly, I find that there is no bar in
either the case law or in the statute preventing the Tribunal from dismissing
by way of preliminary motion on the ground of abuse of its process a matter
referred to it by the Commission, always assuming there are valid grounds to do
so.
[19]
The Applicants are probably correct in stating
that, aside from the inherent right of a tribunal to control its own process,
subsection 48.9(1) of the Canadian Human Rights Act, RSC 1985, c H-6
provides a statutory right to take such an action:
Proceedings before the Tribunal shall be
conducted as informally and expeditiously as the requirements of natural
justice and the rules of procedure allow.
[20]
In the decision under review, the proper
characterization of the Tribunal’s decision when the reasons are read as a
whole is that it found that the motion was premature because the Tribunal required
additional evidence to make the determinations asked for in the motion. The
Tribunal correctly noted that, contrary to the submissions made by the Applicants,
the facts were very much in dispute and the ultimate disposition of the complaints
was dependent upon factual determinations.
[21]
In addition to the factual dispute, the Tribunal
also held that the complexity of the Applicants’ motion, and Ms. Palm’s
response, precluded a clear finding that an abuse of process had occurred.
Moreover, the complaints themselves were quite complex, involving allegations
of systemic discrimination against women. The Tribunal concluded that these
complex issues and questions could not be decided without a full hearing on the
merits.
B.
Was the Decision Reasonable?
[22]
The Applicants submit that the Tribunal’s
decision was unreasonable because:
1)
Ms. Palm’s complaints against them are legally
impossible as a result of her settlement with Western and the BCMEA, which
precludes a finding of liability against the Applicants;
2)
Even if Mr. Wellicome and Mr. Wilkinson engaged
in discriminatory conduct, the Union is not vicariously liable for its members’
workplace conduct;
3)
There is no evidence that Ms. Palm has
experienced discrimination on the basis of sex;
4)
Ms. Palm has abused the Tribunal’s process by
fraudulently altering medical documents; and
5)
Ms. Palm’s retaliation allegations have already
been dealt with through other proceedings.
(1)
The Impact of the Settlement
[23]
The Applicants submit that Ms. Palm’s complaints
cannot legally succeed in the face of her settlement with Western and the BCMEA.
It argues that the relationships between the respondents, and the similar facts
underlying Ms. Palm’s complaints against each of them, mean that any finding of
liability on the part of the remaining respondents will necessarily entail a
finding of liability on the part of those who have settled.
[24]
In support of this submission, they rely on the
Ontario Divisional Court’s decision in York Advertising Ltd v Ontario (Human
Rights Commission) (2005), 197 OAC 185 [York Advertising]. That
case involved a human rights complaint made by an employee against her
employer, a co-worker, and an independent contractor. She eventually settled
her complaint against her employer and her co-worker, but her complaint against
the independent contractor proceeded to the Tribunal. In its decision, the Tribunal
made findings of fact against the employer and co-worker. It found that they
had violated the Ontario Human Rights Code, RSO 1990, c H.19 [Code].
[25]
The employer and co-worker applied for judicial
review of the Tribunal’s decision. The Court allowed the application because,
in finding that the employer and co-worker had violated the Code, the
tribunal had exceeded its jurisdiction and had breached the employer and
co-worker’s rights to procedural fairness. At para 21 the Court stated:
In the circumstances of this case, the
applicants were entitled to assume that, once the terms of the settlement
reached had been fully finalized, they could safely disengage themselves
entirely from the complaints process without fear of being in jeopardy of being
the subject of adverse findings and conclusions by the Tribunal. It would be
incomprehensible, and contrary to law, that a statutory procedure for the
resolution of human rights complaints in Ontario could lead to findings of
wrongdoing against a party who had been released from the complaints process
through a settlement, and who had no formal notice of the hearing, was not a
party to it, and did not participate.
The Court ordered
the Tribunal to reconsider its decision and refrain from making findings or
conclusions adverse to the employer or co-worker that reasonably amount to
findings that they had violated the Code. At para 25 the Court stated:
[I]f it is reasonably necessary to make
adverse findings against the applicants solely to explain findings and
conclusions against [the independent contractor], those findings should not
be articulated in terms that amount to a finding of violations of the Code.
[emphasis added]
[26]
York Advertising
is not authority for the Applicants’ assertion that a settlement agreement
prevents a human rights tribunal from making any findings that suggest that a
party who has settled has breached human rights laws. Rather, it stands for the
much narrower proposition that a human rights tribunal should make findings
against parties who have settled only insofar as those findings are reasonably
necessary to explain its findings and conclusions with respect to the parties
before it and that findings as to the actions of parties who have settled should
not be articulated in terms that amount to a finding of statutory breach.
[27]
Moreover, given the complexity of Ms. Palm’s
complaints against these Applicants, it is not obvious to the Court that some
of those complaints have any connection to the settled complaints. As examples,
it is not clear that Western and the BCMEA would be implicated if the Tribunal
held that the Union had supported a change in work allocation in an effort to
privilege its male members over Ms. Palm. Also, in her submissions on the
motion to dismiss, Ms. Palm specifically denied that Mr. Wilkinson’s fraudulent
alteration of her work hours was done within the scope of his employment and
thus that complaint appears to have nothing to do with the parties to the
settlement. Thus, it is not clear whether a finding of liability against the
Applicants would necessarily implicate Western and the BCMEA. In any event, to
the extent that findings must be made against the parties to the settlement,
all York Advertising requires of the Tribunal is that those findings not
be articulated in terms that amount to findings of a breach of the Act.
(2)
Vicarious Liability
[28]
The Union submits that allegations that it is
liable for the actions of Mr. Wellicome and Mr. Wilkinson cannot succeed because
it is not vicariously liable for its members’ actions. However, Ms. Palm
denies the Union’s claim that it does not control Mr. Wellicome and Mr.
Wilkinson’s workplace conduct. This disputed fact cannot be resolved on the
basis of a legal principle in the absence of evidence.
(3)
Discrimination on the Basis of Sex
[29]
The Applicants also submit that there is no
evidence that Ms. Palm has experienced discrimination on the basis of sex.
However, Ms. Palm repeatedly claims that the events underlying her complaints
are rooted in sex-based animus. She also emphasizes that, at the relevant
times, she was the only female in a group of fourteen. Again, it is impossible
to see how her claim in this regard can be determined on a summary motion and
in the absence of further evidence from her.
(4)
Alleged Fraud
[30]
The Applicants allege that Ms. Palm has altered documents
in an effort to mislead the parties and the Tribunal and that her conduct makes
her complaints an abuse of process. Ms. Palm vehemently denies that this is
the case. While it was perhaps possible for the Tribunal to hold a shortened
hearing on this allegation, the Tribunal is the master of its own proceedings.
It is clear from the Tribunal’s reasons that it was not of the view that this
issue would necessarily be determinative of the entirety of the complaints filed
by Ms. Palm. That is not an unreasonable view.
(5)
Alternative Proceedings
[31]
Lastly, the Applicants submit that Ms. Palm’s
complaints of retaliation have already been adequately dealt with through other
proceedings. Again, Ms. Palm denies this. Given her position and the public
interest aspects of remedies imposed for discriminatory conduct, it is not
unreasonable to conclude that her complaints should not be dealt with in a
summary fashion.
[32]
In conclusion, given these factual disputes, and
the overall factual complexity of the case, the Tribunal’s decision to prefer a
full hearing on the merits was reasonable.
C.
Procedural Fairness
[33]
The Applicants submit that the Tribunal acted in
a procedurally unfair manner by failing to invite submissions on the nature or
existence of any disputed facts, failing to hold a hearing to decide any
disputed facts, and failing to provide reasons for not holding a viva voce hearing.
[34]
I agree with the Commission that these
allegations are without merit. The Tribunal provided the parties with an
opportunity to be heard and considered their submissions and the relevant
jurisprudence in making its decision not to dismiss Ms. Palm’s complaints
before a hearing on the merits.
[35]
It was not incumbent on the Tribunal to
specifically invite submissions on the nature or existence of disputed facts.
The Applicants’ submissions on its motion dealt extensively with the facts in
dispute between the parties. The Applicants attempted, but failed, to convince
the Tribunal that no material facts were in dispute. An explicit invitation
for the Applicants to make submissions on the nature and existence of disputed
facts would not have provided the Applicants with any opportunity to state
their case that they did not already have.
[36]
Likewise, it was not unfair for the Tribunal to
decide not to hold a viva voce hearing to determine the disputed facts
as part of the Applicants’ motion. As the Applicants and the Commission both
acknowledged, the Tribunal is a “master of its own
procedure.” The Applicants’ position is that, notwithstanding the
Tribunal’s broad discretion, once it found that the issues raised by the
Applicants’ motion turned on facts in dispute, it was obliged to give the
parties an opportunity to resolve those disputes, in the context of the motion,
by calling viva voce evidence.
[37]
The procedural protections that the Applicants
were entitled to on their motion to dismiss must be determined in the context
of the proceeding as a whole. The Tribunal did not deny the Applicants an
opportunity to present viva voce evidence in order to resolve the facts
in dispute. Instead, it held that it would be more just to hear such evidence
in the context of a full hearing on the merits. The Tribunal did not say “no” to viva voce evidence; it simply said “not now.”
[38]
What the Applicants are really claiming, then,
is a procedural right to a less extensive (and expensive) procedure for
resolving the facts in dispute: a viva voce hearing on a motion to
dismiss, as opposed to a full hearing on the merits. The Applicants do not
cite any authority for the proposition that excessive procedural protections
can amount to a violation of procedural fairness.
[39]
The Supreme Court of Canada recognized in Hryniak
v Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para 24, that “undue process and protracted trials, with unnecessary
expense and delay, can prevent the fair and just resolution of disputes.”
It may be possible that an onerous process could undermine procedural fairness
in a case where the costs that it imposes on the parties are disproportionate
to the fairness-enhancing protections that it provides. However, this is not
one of those cases. In this case, the Tribunal concluded that a full hearing
on the merits was a preferable procedure for resolving the issues in dispute. This
was a reasonable conclusion for the reasons outlined above.
[40]
Finally, the Applicants raise concerns about the
Tribunal’s failure to provide reasons for not holding an oral hearing. At
paragraph 64 of his reasons, the Member states that “[t]he
Tribunal does not consider that a viva voce hearing is necessary to dispose of
the respondent’s motion for the following reasons.” After that he goes
on to provide reasons for why the Applicants’ motion was premature, without
specifically addressing the issue of the viva voce hearing.
[41]
While the Tribunal may have failed to clearly
articulate its specific reasons for declining to hold a viva voce
hearing, it is clear that the Tribunal did not find it necessary to hear viva
voce evidence on the Applicants’ motion because it believed that it would
be better to hear such evidence in the context of a full hearing on the
merits. At para 70 of its reasons, the Tribunal writes:
In light of the forgoing, and having regard
to the fact that the Tribunal is the master of its own procedure as set out in First
Nations Child and Family Caring Society of Canada, noted above, the
Tribunal is of the view that a hearing on the merits would provide better
compliance with the rules of natural justice and procedural fairness with
respect to the complaints made by the complainant and would certainly better
serve the interests of justice.
[42]
For these reasons, this application is
dismissed. The Commission did not seek its costs, and thus none will be
ordered.
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