Date: 20090513
Docket:
A-468-08
Citation: 2009 FCA 154
CORAM: EVANS J.A.
LAYDEN-STEVENSON
J.A.
RYER J.A.
BETWEEN:
LAURA
GAINER
Appellant
and
EXPORT DEVELOPMENT CANADA
Respondent
Heard
at Toronto, Ontario, on May
13, 2009.
Judgment
delivered from the Bench at Toronto, Ontario,
on May 13, 2009.
REASONS FOR JUDGMENT OF THE COURT
BY: EVANS J.A.
Date: 20090513
Docket:
A-468-08
Citation: 2009 FCA
154
CORAM: EVANS J.A.
LAYDEN-STEVENSON J.A.
RYER J.A.
BETWEEN:
LAURA GAINER
Appellant
and
EXPORT
DEVELOPMENT CANADA
Respondent
REASONS FOR
JUDGMENT OF THE COURT
(Delivered from the
Bench at Toronto, Ontario, on May 13, 2009)
EVANS J.A.
[1]
This is an appeal by Laura Gainer from a decision of the Federal Court
(2008 FC 904) in which Justice Simpson dismissed her application for judicial
review to set aside a 2007 decision of the Canadian Human Rights Commission to
dismiss her complaint against her previous employer, Export Development Canada
(“EDC”). Accepting the recommendation of its investigator, the Commission
concluded that the evidence did not support Ms Gainer’s allegation that EDC had
retaliated against her for filing a pay equity complaint against it: paragraph
44(3)(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6
(“Act”).
[2]
The Commission had undertaken this investigation pursuant to an Order of
Justice von Finckenstein of the Federal Court who had granted Ms Gainer’s
application for judicial review of the Commission’s initial dismissal of her
complaint in 2005. In his reasons for decision (2006 FC 814), Justice von
Finckenstein identified three deficiencies in the Commission’s investigation of
Ms Gainer’s complaint that EDC had retaliated against her contrary to section
14.1 of the Act. Accordingly, in his Order, he set aside the decision of the
Commission “as it relates to the issue of reprisals” and sent the matter back
for investigation by a different investigator “solely on the issue of the
allegations of reprisal.”
[3]
The allegations of reprisal before Justice von Finckenstein related to
incidents that took place before Ms Gainer filed her complaint with the
Commission in 2003. However, counsel appearing before Justice von Finckenstein
did not draw his attention to a then recent decision of this Court interpreting
section 14.1 of the Act as applying only to acts occurring after a complaint
had been filed: Dubois v. Canada (Attorney General), 2006 FCA 127. When
the matter went back to the Commission pursuant to the Order of Justice von
Finckenstein, the investigator relied on Dubois when recommending that
Ms Gainer’s complaint be dismissed.
[4]
In this appeal, counsel for Ms Gainer advances two principal arguments.
First, he urges us to depart from the Court’s decision in Dubois and to
adopt the interpretation of section 14.1 which the Court specifically rejected,
namely that section 14.1 refers to acts committed before and after the filing
of a complaint. However, we see no basis for reconsidering this decision,
especially since none of the limited circumstances outlined in Miller v. The
Queen, 2002 FCA 370, 220 D.L.R. (4th) 149 is present here. Nor
do we agree that the Court’s conclusion in Dubois on the interpretation
of section 14.1 should be treated as obiter dicta and therefore as not
precedential.
[5]
Second, counsel argues that the order of Justice von Finckenstein did
not restrict the Commission to investigating Ms Gainer’s allegation that EDC
had retaliated against her contrary to section 14.1, and that the investigator
did not conduct a thorough investigation of Ms Gainer’s complaint regarding her
allegations of harassment and reprisals. We disagree. Like Justice Simpson, we
are of the view that, when read in the context of his reasons, Justice von
Finckenstein’s Order is restricted to section 14.1.
[6]
Having rejected Ms Gainer’s first two grounds of review, namely that the
Commission had breached the duty of fairness and had misinterpreted the pay
equity provisions in section 11 of the Act, Justice von Finckenstein started
his analysis of the third and final ground under the heading, “Did the
Commission err by failing to consider, interpret and correctly apply s. 14.1 of
the Act?” It was in connection with this ground that he found the deficiencies
in the Commission’s investigation on which he based his decision to quash the
dismissal of the complaint. See also paras. 10 and 40 of his reasons.
Subsequent references in his reasons, as well as the Order of the Court, to
reprisals or retaliation should be understood as references to allegations of a
breach of section 14.1.
[7]
Given the limited nature of the scope of the investigation that the
Commission was ordered to undertake, it was not open to Ms Gainer to argue
before Justice Simpson or this Court that EDC’s conduct breached other provisions
of the Act. Nor may counsel rely on section 14.1 with respect to alleged acts
of retaliation that occurred after Ms Gainer had filed her complaint because
they were not raised before Justice von Finckenstein and were therefore outside
the narrow scope of the investigation that he ordered.
[8]
For these reasons, and despite the able arguments of counsel, the appeal
will be dismissed with costs.
"John M.
Evans"
FEDERAL COURT
OF APPEAL
NAMES OF
COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-468-08
(APPEAL FROM AN ORDER OF THE HONOURABLE MADAM JUSTICE
SIMPSON DATED JULY 24, 2008, DOCKET NO. T-1333-07)
STYLE OF
CAUSE: LAURA
GAINER v.
EXPORT
DEVELOPMENT CANADA
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: May 13, 2009
REASONS
FOR JUDGMENT OF THE COURT BY: (EVANS,
LAYDEN-STEVENSON & RYER JJ.A)
DELIVERED
FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
Barry Weintraub
|
FOR THE APPELLANT
|
|
Barbara McIsaac, Q.C.
Helen Gray
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Rueter Scargall Bennett LLP
Lawyers
Toronto, Ontario
|
FOR THE APPELLANT
|
|
McCarthy Tetrault LLP
The Chambers
Ottawa, Ontario
|
FOR THE RESPONDENT
|
Email this Content