Date: 20101104
Docket: A-171-10
Citation: 2010 FCA 292
CORAM: BLAIS
C.J.
NOËL
J.A.
PELLETIER
J.A.
BETWEEN:
PAUL E.
RICHARD
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
This is an appeal
from a decision of Beaudry J. of the Federal Court (the Applications Judge) dismissing
an application for judicial review brought by the appellant, Mr. Paul E.
Richard against a decision of the Human Rights Commission (the Commission)
holding that the Mr. Richard’s complaint against Treasury Board would not be
dealt with because the events giving rise to the complaint occurred more than
20 years ago.
[2]
Paragraph 41(1)(e)
of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act) provides
in this respect:
|
41. (1) Subject
to section 40, the Commission shall deal with any complaint filed with it
unless in respect of that complaint it appears to the Commission that
…
(e)
the complaint is based on acts or omissions the last of which occurred more
than one year, or such longer period of time as the Commission considers
appropriate in the circumstances, before receipt of the complaint.
|
41. (1) Sous
réserve de l’article 40, la Commission statue sur toute plainte dont elle est
saisie à moins qu’elle estime celle-ci irrecevable pour un des motifs
suivants :
[…]
e) la plainte
a été déposée après l’expiration d’un délai d’un an après le dernier des
faits sur lesquels elle est fondée, ou de tout délai supérieur que la
Commission estime indiqué dans les circonstances.
|
[3]
This is the second time
the Commission has declined to proceed with the Mr. Richard’s complaint. On
June 21, 2007, the Commission informed him that it would not hear his complaint
as it fell outside the one-year limitation period prescribed by paragraph
41(1)(e) of the Act. Mr. Richard sought judicial review and Martineau J.
returned the matter to the Commission for a fresh evaluation: see Richard v.
Canada (Treasury Board), 2008 FC 789, 330 F.T.R. 236 [Richard].
[4]
Following Martineau
J.’s decision, Mr. Richard and the Attorney General made further submissions to
the Commission on the issue of the limitation period and the Commission’s
discretionary power to extend it. On August 19, 2009, the Commission decided
not to deal with the complaint because it was satisfied that the Attorney
General would be prejudiced in his ability to respond adequately to the
complaint because more than twenty years had elapsed between the events giving
rise to the complaint and the filing of the complaint. Mr. Richard filed an
application for judicial review of that decision.
[5]
The Applications
Judge came to the conclusion that “the evidence is sufficient to support the
Commission’s findings and the Court’s intervention is not warranted” (Reasons
at para. 23). In response to the appellant’s argument that the Attorney General
had not led evidence that Treasury Board would be prejudiced by the delay, the
Applications Judge found that in light of Treasury Board’s guidelines as to
document retention and destruction, he was unable to see how the Attorney
General “could be expected to adduce evidence as to how the documents could
have been relevant to its defence when it has no knowledge of what documents
might have ever existed and would have been destroyed many years ago” (Reasons
at para. 24).
[6]
As for the witnesses
identified by the Mr. Richard in his complaint, the Applications Judge concluded
that the Attorney General had shown that it would be difficult, if not
impossible to locate them. Furthermore, due to the lack of documentation, the
complaint would rest entirely on the recollections of those memories; in his
view, it was unlikely that those witnesses would accurately recall events that
occurred some 20 years ago.
[7]
On appeal to this
Court, Mr. Richard reiterates the submissions made before the Applications
Judge. He argues that the Attorney General has not provided evidence that
demonstrates that he would be significantly prejudiced in his ability to defend
himself due to the delay.
[8]
On an appeal from a
decision disposing of a judicial review, the question for the appellate court
is whether the reviewing court selected the correct standard of review and
whether it applied that standard correctly: see Dr. Q v.
College of Physicians and Surgeons of British Columbia, [2003] 1
S.C.R. 226, 2003 SCC 19 at para. 43.
[9]
In the case at bar,
the Applications Judge correctly selected the standard of reasonableness: see Bredin
v. Canada (Attorney General), 2008 FCA 360 at para. 16; Richard
at para. 10; Khanna v. Canada (Attorney General), 2008 FC 576 at para. 24.
[10]
In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para. 47 [Dunsmuir], the Supreme Court of Canada wrote that that a
decision is reasonable if it “falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.”
[11]
Given this criteria,
the appeal cannot succeed.
[12]
In order to properly
appreciate the issue of prejudice, it is necessary to refer to Mr. Richard’s
complaint which is based on sexual orientation. In it, Mr. Richard sets out his
employment history with the Federal Government from 1977 to 1985. He describes
6 staffing decisions in which he suffered adverse results, and one work place
conflict. Some of the staffing decisions occurred in the context of
departmental reorganizations. He attributes these outcomes to homophobia on the
part of certain named individuals. In order to properly investigate these
complaints it would be necessary to access information about the staffing
competitions to determine if the results could be explained by factors other
than the homophobia identified by Mr. Richard. The documentation relating to
these transactions would be critical to such an inquiry. The investigation of
the work conflict situation is heavily dependent upon the recollection of
events which occurred more than 20 years ago by persons who may or may not be
traceable.
[13]
In my view, the
Applications Judge properly held that the Attorney General would be prejudiced
in his ability to mount a defence to the complaint because the relevant
documents have likely been destroyed in accordance with the Retention
Guidelines for Common Administrative Records of the Government of Canada, which
provide for the retention of routine administrative records for 2 years after
all administrative actions are complete. Mr. Richard argues that the Attorney
General has not even attempted to prove that his personnel file has actually
been destroyed.
[14]
However as was noted
by the Applications Judge at paragraph 24 of his reasons:
… all pertinent
documentation would clearly have been destroyed pursuant to policy and, in
light of that, I do not see how the [Attorney General] could be expected to
adduce evidence as to how the documents could have been relevant to its defence
when it has no knowledge of what documents might have ever existed and would
have been destroyed many years ago.
It
is true that in saying this the Applications Judge assumed that the document
retention policy had been applied according to its terms. But in light of the
evidence that Treasury Board had no inkling of Mr. Richard’s grievances until
it received a copy of his complaint to the Commission, it is reasonable to
assume that the policy was applied to Mr. Richard’s file and to all the files
relevant to the investigation.
[15]
With respect to the
witnesses, Mr. Richard claims that it is not difficult to locate many of them.
Indeed, through Internet searches he found five of them. In its decision, the
Commission pointed to the Attorney General’s submission that there was no way
to know if the people located by Mr. Richard on the Internet were actually the
same people mentioned in his complaint. The evidence is that Treasury Board was
able to locate three persons with the same names as persons named in Mr.
Richard’s complaint but none of them were the persons with whom Mr. Richard
dealt.
[16]
More compelling
however is the fact that absent documentation, Mr. Richard’s entire case relies
on the recollections and memories of the witnesses. What is more, Mr. Richard
does not point to overt acts of discrimination against him. His complaint is
founded on conclusions he has drawn from a series of events involving a number
of different actors. Consequently, the task of assessing whether Mr. Richard
was the victim of discriminatory treatment would necessarily involve an
appreciation of the entire context in which he worked, a difficult thing to do
even when dealing with recent events. As noted by the Applications Judge, the
“general function of a time limitation period relates to the gathering of
credible evidence (Price v. Concord Transportation Inc., 2003 FC
946, 238 F.T.R. 113)” (Reasons at para. 26; my emphasis).
[17]
Mr. Richard
invoked certain decisions of the Federal Court in support of his position. He
relied particularly upon the case of Canada (Attorney General) v. Burnell, [1997] F.C.J. No. 931 for the
proposition that “A claim of prejudice is not a
self-evident truth. In order to substantiate such a claim, specific evidence
must be adduced to support it.”: see paragraph 27. That said, the passage of
time, long periods of time, is not without incidence. The more remote the
events in issue, the easier it is to find evidence of prejudice, to the point
where there arises what has been called a rebuttable presumption of prejudice:
see for example the reasons of Robertson J.A. in Canada v. Aqua-Gem
Investments Ltd, [1993] 2 F.C. 425 (F.C.A.), [1993] F.C.J. No. 103 at p. 471.
See also Ring v. Canada, [1973] F.C.J. No. 1007 at para.18, Nichols
v. Canada, [1990] F.C.J. No. 567 (F.C.), Kearns v. Chrysler Canada,
[1996] F.C.J. No. 1484 (F.C.) at para. 10, Smith v. Via Rail Canada Inc.,
2007 FCA 286 at paragraph 13. The passage of time in this case lightens the
burden of proof on the defendant.
[18]
Mr. Richard also
relied upon a very recent decision of the Supreme Court of Canada, Christensen
v. Roman Catholic Archbishop of Quebec, 2010 SCC 44, which deals with the
running of limitation periods. In Christensen, the Supreme Court decided
that the Quebec courts had erred in concluding, on a
motion to strike the plaintiff’s claim as statute barred, that the period at
which the limitation period began to run against the plaintiff could be
determined on the basis of the motion record. The Supreme Court sent the matter
back in order for the Quebec Superior Court for trial. No such issue arises
here.
[19]
Lastly, Mr. Richard
argues that the Commission’s decision is unreasonable because it failed to
weigh the prejudice to the Attorney General relative to the prejudice Mr.
Richard will suffer if his complaint does not proceed. Such an argument
highlights the finality of the decision not to proceed with a complaint but
limitation periods, by their very nature, contemplate that claimants can be
deprived of their remedy by the passage of time. This is such a case.
[20]
I would dismiss the
appeal with costs.
“J.D. Denis Pelletier”
“I
agree.
Blais
C.J.”
“I
agree.
Noël
J.A.”
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