Date:
20131204
Docket: T-759-13
Citation:
2013 FC 1220
Ottawa, Ontario,
December 4, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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CLEMENT HICKS
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Applicant
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and
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CANADIAN NATIONAL RAILWAY
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1] This is an application
for judicial review pursuant to section 18.1 of the Federal Courts Act,
RSC 1985, c F-7 of a decision of the Canadian Human Rights Commission [the
Commission]. The Commission dismissed a complaint by the Applicant pursuant to
subsection 41(1)(e) of the Canadian Human Rights Act, RSC 1985, c H-6
[the Act].
I. Issue
[1]
The
issue raised in the present application is:
A. Was the Commission’s decision not to
extend the one year time limit to hear the Applicant’s complaint under
subsection 41(1)(e) of the Act reasonable?
II. Standard of Review
[2]
The
parties agree that the standard of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at paras 44-49, 54-57, 62, 64; et al).
III. Background
[3]
The
Applicant was employed by the Respondent as a railway mechanic from April, 1990,
until February 19, 2002, when he was terminated after being found to have been
in violation of the Respondent’s drug and alcohol policy. The Applicant was a
member of the CAW Local 100, Rail Division [the Union] at the time of his
dismissal.
[4]
With
encouragement from the Union, the Applicant subsequently attended various
treatment programs for addiction from 2002 until 2006, in an effort to gain
reinstatement. In 2006, as an alternative to arbitration, the Respondent
suggested that the Applicant be evaluated by Dr. Sutton, an addictions
specialist retained by the Respondent. The Applicant agreed to this evaluation,
which was conducted on February 7, 2006. Dr. Sutton gave a negative evaluation
of the Applicant.
[5]
From
March, 2006 to December, 2008, the Applicant worked as a welder. He has also
supplied evidence that he worked on a short term basis in 2004.
[6]
In
February, 2009, the Applicant suffered a ruptured aortic aneurism. The Applicant
alleges that he suffers ongoing impaired concentration and memory as a result.
In addition, the Applicant alleges that he has seen a psychiatrist, Dr. Doyle,
who has prescribed medication for anxiety, depression and anti-psychotic drugs,
as a result of the stress caused by his dismissal and the difficulties
encountered in seeking reinstatement. The Applicant claims he left work in
December, 2008, as a result of his health issues.
[7]
On
October 13, 2009, the Applicant was informed by the Union that they would not
be assisting him with further reinstatement requests and considered his case
closed.
[8]
On
September 18, 2012, the Applicant filed a complaint with the Commission [the
Complaint]. The Complaint alleged that the Respondent had discriminated against
him on the basis of a disability. The last of the alleged discriminatory acts
occurred during his visit with Dr. Sutton, on February 7, 2006.
[9]
On
November 28, 2012, the Commission released a Section 40/41 Report [the Report],
which recommended that the Applicant’s complaint not be dealt with pursuant to
section 41(1)(e) of the Act, because the complaint was based on acts that
occurred more than one year before the complaint was filed.
[10]
On
December 12, 2012, the Applicant wrote a letter to the Commission in response
to the Report. Included in this letter were statements that he telephoned the Commission
in 2008, but was told he was not permitted to pursue his complaint until all union
grievances were exhausted. This is not required by the Act. Also in his letter
he made a number of assertions which apparently relate to why he was unable to
promptly file a complaint following the October 13, 2009, letter from his Union.
[11]
On
February 13, 2013, the Applicant submitted another letter in response to the Report.
In this letter, the Applicant states that he called the Commission as early as
2002 and 2006 for assistance in seeking redress for the alleged discrimination,
and was told both times to pursue all grievance options prior to filing a
complaint. As for the delay after the 2009 letter from the Union, he states
that “it was never an option for a person in my situation.”
[12]
In
a Record of Decision dated March 20, 2013, the Commission decided that it would
not deal with the Applicant’s complaint, pursuant to section 41(1)(e) of the
Act. The Commission’s decision states:
The last alleged discriminatory act occurred more
than one year before receipt of the complaint by the Commission and it is not
appropriate to deal with the complaint because the complainant did not do
everything that a reasonable person would do in the particular circumstances to
proceed with the complaint.
[13]
The
Commission considered, among other things, the Report and the Applicant’s
letters. The Report stated a number of factors it used in considering the
application of section 40(1)(e). These factors include:
a) The
date of the last discriminatory act was on February 7, 2006;
b) That
the series of discriminatory acts are alleged to be linked;
c) First
recorded contact with the Commission by the Applicant was in June, 2008;
d) The
Applicant submitted his complaint on September 18, 2012, more than six years
after the last alleged discriminatory act was committed, and he gave no
specific reason for the delay between the initial contact he had with the
Commission and the initializing of his complaint; and
e) He
did not file a grievance while the discrimination was occurring because he was
concerned about workplace consequences, though he asserts that correspondence
from his Union received in 2008 suggests he had little chance of success;
[14]
In
exercising its discretion to hear a complaint where more than one year has
elapsed, the Commission notes that the following factors should be considered:
a) The
nature and seriousness of the issues raised, and the impact on the public interest;
b) The
length of delay, reasons for it, and the degree to which the complainant was
responsible for that control;
c) Whether
the complainant was represented at any time;
d) Whether
the delay due to the complainant pursuing another redress procedure;.
e) Whether
the respondent had notice of the complainant’s attention of filing a complaint;
and
f) Whether
the respondent’s ability to defend the complaint would be seriously prejudiced.
[15]
The
Commission concluded that:
The complainant is not able to provide evidence that
any of the allegations might be severed from the remainder, nor is the
complainant able to give many concrete indications of his diligence in pursuing
the complaint. It would appear likely that after a period of ten years, the
preparing of a defence to the complainant would pose significant challenges for
the respondent relative to both the memory of potential witnesses and the
retrieval of relevant documents.
[16]
For
reasons that follow, this application is dismissed.
IV. Analysis
[17]
The
Applicant argues that the discretionary power under section 41(1)(e) of the Act
must be used with consideration to the good faith of the complainant, the
reasonableness of his explanations for the delay and the existence of some harm
or prejudice to the Respondent due to the delay (Bredin v Canada (Attorney
General), 2006 FC 1178, at para 55; Richard v Attorney General of Canada,
2010 FC 436, at para 20 [Richard]).
[18]
The
Applicant also argues that disability was a major factor responsible for the
delay in filing his complaint with the Commission, and the Commission was aware
of this disability based on the information submitted regarding his heart
attack, various attempts at alcohol rehabilitation, and mental health issues.
Despite this awareness, the Commission did not consider this in deciding not to
exercise its discretion under section 41(1)(e) of the Act as it should have (Bredin
v Attorney General of Canada, 2007 FC 1361, at para 31).
[19]
Finally,
the Applicant argues that the Commission had no evidence of prejudice to the
Respondent by reason of the delay alone, and delay itself is not evidence of
prejudice (Richard, above, at para 22; Canada (Attorney General) v
Burrell, [1997] 131 FTR 146, at paras 26-27).
[20]
The
Respondent asserts in the Record of Decision dated March 20, 2013, that it
considered all correspondence from the Applicant. However, there is no
indication of such consideration, as neither the Report nor the Record of
Decision analyzes the potential impact of the health issues faced by the
Applicant. I agree with the Applicant to the extent that the Commission failed
to explicitly analyze his alleged disabilities.
[21]
The
question then becomes whether this omission renders the Commission’s decision
unreasonable. The case most relevant to this context is Bredin. In Bredin,
the Applicant’s complaint was denied on the basis of untimeliness pursuant to subsection
41(1)(e), after the Applicant filed her complaint more than 21 months after the
last alleged instance of discrimination. At paras 31-32, Justice Frenette states:
Among the circumstances to be considered by the
Commission, is the disability factor. If this disability has hindered the
filing of the complaint motion, the prescribed delay [sic]. The Commission must
take it into account to reach a decision, see Lukian v. Canada National
Railway Co. (CNR), [1994] F.C.J. No. 727.
It seems that there is no case reported relating to
a psychological disability in determining any extension of a time. In
principle, I see no logical basis for not considering such a disability if it
is established that it rendered the complainant unable to file a complaint
within a year limit set by law.
[22]
The
Bredin case relies on Lukian v Canada National Railway Co, [1994]
FCJ No 727 [Lukian]. However, Lukian does not specifically
prescribe disabilities as a factor that must be considered. Para 8 from Lukian
is relevant:
What the law requires is the Commission to consider
each individual case before it, to act in good faith, to have regard to all
relevant considerations and not be swayed by irrelevant ones, and to refrain
from acting for a purpose contrary to the spirit of its enabling legislation or
in an arbitrary or capricious manner.
[23]
In
this case, it is not clear that the Applicant’s submissions as to his alleged
disabilities are relevant to the delay in submitting his complaint. Unlike in Bredin
at para 39, where a medical report was submitted which “…demonstrated that
during the delay period the applicant was diagnosed with major depression and
unable to focus and concentrate, complete tasks in a timely manner, and lost
interest in matters,” no medical evidence was presented to the Commission.
[24]
Moreover,
the Applicant was able to deal with the Union over the period of time in
question, and yet did not file a complaint with the Commission.
[25]
Instead,
the Applicant submitted various letters which alluded to various health and
substance abuse problems. While it is not this court’s role to re-weigh
evidence, it is necessary to examine the letters to determine whether the
Commission ought to have considered this evidence. From such a review, it is
evident that these submissions do not show that the delay was a result of his
disability. This is compounded by the Applicant’s failure to submit any supporting
medical evidence.
[26]
Given
the real question of the applicability of the Applicant’s alleged disabilities in
causing the lengthy delays and the unlikelihood that they were responsible for
a delay of either ten or six years in filing his complaint, I do not think the
Commission was under an obligation to expressly consider the Applicant’s
alleged claims of disability in determining whether to hear his complaint under
subsection 41(1)(e). The Commission did reference the Applicant’s disabilities,
directly or indirectly, in paragraphs 7, 10, 14 and 17 of the decision.
[27]
The
Applicant also takes issue with the fact that the Commission found that the
Respondent would suffer prejudice due to the length of time that has elapsed
and the potential prejudice this has had on relevant witnesses. Considering the
alleged discrimination began in 2002, more than ten years have passed since
those events. I do not think it is purely speculative to find that such a
length of time would prejudice the Respondent. The potential inability for
witnesses to accurately recall specific incidents could prejudice the Respondent’s
ability to build a defence. That being said, the evidence was weak at best in
supporting the allegation of prejudice due to the delay.
[28]
Given
the above, the Commission’s decision was justified, transparent and
intelligible and within the range of possible, acceptable outcomes.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The Applicant’s
application is dismissed.
"Michael D.
Manson"
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