Date: 20110208
Docket: A-193-10
Citation: 2011 FCA 50
CORAM: NOËL J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
CLAYTON N. DONOGHUE
Appellant
and
(Attorney General of Canada on behalf of)
THE MINISTER OF NATIONAL DEFENCE
Respondent
Heard at Toronto, Ontario, on February
8, 2011.
Judgment delivered from the Bench at Toronto,
Ontario, on February
8, 2011.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS
J.A.
Date: 20110208
Docket: A-193-10
Citation: 2011 FCA 50
CORAM: NOËL
J.A.
EVANS
J.A.
SHARLOW
J.A.
BETWEEN:
CLAYTON N. DONOGHUE
Appellant
and
(Attorney General of Canada on behalf of)
THE MINISTER OF NATIONAL DEFENCE
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Ottawa, Ontario, on February 8, 2011)
EVANS J.A.
[1]
This is an
appeal by Clayton N. Donoghue from a decision of the Federal Court (2010 FC
404), in which Justice O’Keefe (Judge) dismissed Mr Donoghue’s application for
judicial review of a decision by the Canadian Human Rights Commission (CHRC) to
reject his complaint pursuant to the Canadian Human Rights Act, R.S.C.
1985, c. H-6, paragraph 41(1)(e), without investigating its merits.
[2]
Paragraph 41(1)(e)
confers a discretion on the CHRC to decline to investigate a complaint of
discrimination made more than one year after the incident relied on by the
complainant. Mr Donoghue filed a complaint of discrimination with the CHRC on
November 30, 2007. His complaint form gave the date of the conduct of which he
complained as having occurred from March 5, 1999 to around May 16, 2000.
[3]
Mr
Donoghue’s complaint arises from his release from the Canadian Forces reserves
in 1999, and subsequent related events. He alleges that he was discriminated
against on account of injuries for which the Minister of National Defence, as
the Minister accountable for the conduct of the Canadian Forces, was
responsible.
[4]
In its
decision record, dated December 10, 2008, the CHRC stated that it was not
appropriate to deal with Mr Donoghue’s complaint, received six or seven years
outside the one year limitation period, because he had not done everything that
a reasonable person would have done in the circumstances to pursue the complaint,
and the delay would seriously prejudice the respondent’s ability to respond.
[5]
The Judge
concluded that the CHRC’s rejection of Mr Donoghue’s complaint for delay was
not unreasonable. In reaching his decision, he took particular account of the breadth
of the CHRC’s discretion under paragraph 41(1)(e), the length of the
delay, the resulting prejudice to the respondent, and Mr Donoghue’s active
pursuit of other forms of redress before going to the CHRC.
[6]
Substantially
for the reasons given by the Judge, we agree that, on the basis of the
information before the CHRC when it made its decision, there is no warrant for
judicial intervention in the exercise of the CHRC’s discretion not to
investigate Mr Donoghue’s complaint because of his delay.
[7]
Accordingly,
the appeal will be dismissed. Counsel for the Attorney General requested costs
in the amount of $1,600.00. In the exercise of our discretion, based on all the
circumstances of this case, costs will be awarded to the Attorney General in
the amount of $500.00, inclusive of disbursements.
“John
M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-193-10
(APPEAL
FROM AN ORDER OF THE HONOURABLE JUSTICE JOHN O’KEEFE OF THE FEDERAL COURT, DATED
APRIL 14, 2010, DOCKET NO. T-134-09)
STYLE OF CAUSE: CLAYTON
N. DONOGHUE AND (Attorney General of Canada
on behalf of) THE MINISTER OF DEFENCE
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: February 8, 2011
REASONS FOR JUDGMENT OF THE
COURT BY: (NOËL, SHARLOW AND EVANS JJ.A.)
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
Clayton N. Donoghue
|
APPELLANT
ON HIS OWN BEHALF
|
|
Derek C. Allen
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
|
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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