Date:
20081119
Docket: A-93-08
Citation: 2008 FCA 356
CORAM: LÉTOURNEAU
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
CHRISTINE PICHÉ
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the bench at Ottawa, Ontario, on November 19, 2008)
LÉTOURNEAU J.A.
[1]
This is an
appeal from a decision of the Federal Court dismissing an application for judicial
review of a decision of the Canadian Human Rights Commission (Commission) made
under paragraph 41(1)(d) of the Canadian Human Rights Act, R.S.C.
[1985], c. H-6 (Act). Essentially, this paragraph authorizes the Commission to
decline to deal with a complaint filed with it if it appears to the Commission
that the complaint is trivial, frivolous, vexatious or made in bad faith.
[2]
The
appellant submits that the Commission improperly refused to exercise its
jurisdiction to rule on her complaint and that this refusal is an error of law.
She asks the Court to set aside the decision of the Federal Court and that of
the Commission. She requests that the matter be referred back to the Commission
for reconsideration in accordance with the reasons for judgment of this Court.
She also seeks costs of the appeal.
[3]
It is not
necessary to go into the details of the events that led to this case, except to
state the following.
[4]
The
appellant was employed by the Correctional Service of Canada (the employer).
She filed three grievances against the employer, the first of which was in
regard to disciplinary measures imposed against her for use of the employer’s
computer equipment at home for personal purposes. This grievance was dismissed.
[5]
The second
grievance relates to her return to work following a prolonged sick leave. She
submitted that the employer unduly delayed her return to work by requiring that
she undergo a medical assessment by Health Canada.
[6]
This
second grievance, for reasons we will state later, was withdrawn by the
appellant before the first-level hearing.
[7]
Finally,
through a third grievance, the appellant challenged her employer’s decision to
refuse a requested paid leave after the fact. Under the collective agreement,
such leave requests had to be approved before the start of the leave. Since the
grievance was bound to fail, the appellant withdrew it before the first-level
hearing.
[8]
Thus, the
appellant subsequently filed a complaint with the Commission, claiming that she
had been the [translation]
“victim of harassment and discrimination based on [her] marital status, family
status and temporary sick leave, or the perception of this temporary sick
leave” (see Appeal Book, at page 56, appellant’s complaint).
[9]
The
appellant’s complaint was analyzed by an investigator of the Commission, and
the investigator rightly noted that, by the union’s own admission, these
grievances clearly could not be arbitrated since they were without merit: the
employer was entitled to request Health Canada’s opinion and to refuse the requested
paid leave after the fact (see the investigator’s report, Appeal Book, page 39,
paragraphs 16 and 17).
[10]
Regarding
the actual matter of discrimination with respect to the three incidents that
were the subject of the grievances and the complaint before the Commission, the
investigator writes the following at paragraph 18 of his report:
In support of her
request to have the Commission rule on her complaint, the complainant submitted
a letter she received from the union. Nothing in this letter points to the fact
that the respondent could have based the measures taken on the complainant’s
marital status or disability. The complainant submitted no additional
information.
Consequently, the investigator made the following
recommendation at paragraph 19:
It is recommended, under
paragraph 41(1)(d) of the Canadian Human Rights Act, that the
Commission not rule on the complaint as it contains nothing else that
concerns the Commission.
[Emphasis added]
[12]
The
Commission reviewed the file and, in a letter to the appellant, informed her
that it had decided, under paragraph 41(1)(d) of the Act, not to rule on
the complaint because [translation]
“it was possible to decide the allegations of discrimination through the other
remedy, grievances under the collective agreement” (see Appeal Book, page 33,
decision of the Commission).
[13]
The
terminology used by the Commission to express its conclusion is unfortunate
because, taken literally, it suggests that the issue of discrimination was
resolved by adjudication on the merits of the grievances by the appropriate
authority. However, aside from the first grievance, which was dismissed, the
other two were withdrawn. It is therefore not surprising that the appellant
challenges this conclusion on the basis that the grievances did not resolve the
issue of discrimination.
[14]
With
respect, the Commission’s conclusion must not be read literally or abstractly
or taken out of context. Rather, it should be read and analyzed in the context
of the investigator’s report, the actual allegations of the appellant, the
incidents themselves, the union’s opinions on the issues and the evidence
presented in support of the allegations of discrimination.
[15]
All of the
evidence shows that the measures taken by the employer, measures that were
cited by the appellant as being discriminatory, were justified and that there
is no evidence of a ground of discrimination. The grievances revealed the
legitimacy of the employer’s actions and the absence of any underlying
discrimination. It is in this sense that we are of the opinion that the Commission’s
conclusion that [translation] “it
was possible to decide the allegations of discrimination through the other
remedy, grievances under the collective agreement” should be read and
understood.
[16]
For these
reasons, we are of the opinion that the Federal Court, though not without
equivocation, came to the right conclusion and that the appeal should be
dismissed with costs.
“Gilles
Létourneau”
Certified
true translation
Tu-Quynh
Trinh
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