Date:
20051212
Docket: A-171-05
Citation: 2005 FCA 413
CORAM: NOËL
J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
PUBLIC SERVICE ALLIANCE OF
CANADA
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This is an
appeal from a judgment of the Federal Court allowing an application for
judicial review of a decision by the Canadian Human Rights Commission (the
Commission) on the ground that the Commission did not observe the rules of
procedural fairness.
[2]
More
specifically, the Court held that the Commission had not given sufficient
reasons for its decision, and thus had not complied with subsection 42(1)
of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act):
|
42.
(1) Subject to subsection (2), when the Commission decides not to deal with a
complaint, it shall send a written notice of its decision to the complainant
setting out the reason for its decision.
|
42.
(1) Sous réserve du paragraphe (2), la Commission motive par écrit sa
décision auprès du plaignant dans les cas où elle décide que la plainte est
irrecevable.
|
Facts
[3]
In July
1992, Revenue Canada (now the Canada Revenue Agency and the Canada Border
Services Agency) transferred to the Government of Quebec a group of employees
belonging to the clerical and regulatory employee professional group (CR). On
July 29, 1998, six years after these employees were transferred, a tribunal
established pursuant to the Act found that the salary of employees in the CR
group, including the employees transferred in 1992, was discriminatory.
[4]
On May 9,
2003, the Public Service Alliance of Canada (the respondent) filed a complaint
with the Commission alleging that the agreements concluded by the Treasury
Board governing the transfer of federal employees to the provincial government
were in violation of sections 7 and 10 of the Act. The respondent
submitted that the effect of the agreements was to perpetuate salary
discrimination against the transferred employees and nullify the right of those
employees to benefit from the relief granted in the decision rendered by the
tribunal in July 1998.
[5]
The
respondent’s complaint was filed with the Commission more than four years after
the tribunal’s decision. No explanation was given. The respondent simply
said:
[translation]
The above complaints
concern the discriminatory effect of the transfer of federal Public Service
employees to provincial institutions . . . Recently, we learned
of similar situations involving employees transferred from Revenue Canada to
the Government of Quebec. In our view, the situation of those employees should
be assessed in the light of the investigation of the outstanding complaints . . .
We know that this new complaint deals with certain events which go back several
years. Nevertheless, this new complaint is identical in nature to the
outstanding complaints and there is nothing to justify excluding the complaint
from the ongoing investigation. (Investigation Report, Appeal Book,
p. 25.)
[6]
After
analysis, the Commission investigator came to the conclusion that the
respondent had not provided any good reason for its delay in filing its
complaint. In his investigation report, he recommended that the Commission not
rule on the complaint pursuant to paragraph 41(1)(e) of the Act, as
the complaint was based on facts which had occurred more than a year before it
was filed with the Commission.
[7]
The
parties had an opportunity to comment on the Commission investigator’s report.
The parties’ comments and the investigator’s report had been submitted to the
Commission when it rendered its decision on the respondent’s complaint.
[8]
On May 3,
2004, the Commission dismissed the complaint on the ground that it was not to
deal with it under paragraph 41(1)(e) of the Act. The Commission’s
decision reads as follows:
Before rendering their
decision, the members of the Commission reviewed the report disclosed to you
previously and any submission(s) filed in response to the report. After
examining this information, the Commission decided not to deal with the
complaint because: it pertains to acts which occurred more than one year before
the complaint was filed.
[9]
On March
23, 2005, the Federal Court allowed the application for judicial review of this
decision on the ground that the Commission had failed to comply with the
principle of procedural fairness as it had not given sufficient reasons for its
decision.
[10]
That is
the judgment a quo.
Analysis and decision
[11]
In my
view, the trial judge wrongly held that the Commission’s decision was not
supported by sufficient reasons to meet the requirements of
subsection 42(1) of the Act.
[12]
It is true
that in Kidd v. Greater Toronto Airport Authority, [2004] F.C.J.
No. 859 (affirmed on appeal, Kidd v. Greater Toronto Airport Authority,
[2005] F.C.A. 81), it was held that the Commission had to do more than
paraphrase the Act in order to meet its duty to set out its reasons. However,
as the trial judge noted, that was a case in which the Commission had refused
to follow the investigator’s recommendation.
[13]
In the
case at bar, the Commission noted that it had reviewed the investigator’s
report and disposed of the matter in accordance with his recommendation. It
has already been held several times that, in so doing, the Commission approves
and adopts the reasons relied on by the investigator (S.E.P.Q.A. v. Canada
(C.H.R.C.), [1989] 2 S.C.R. 879, at page 899; Bell Canada v.
Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 11,
at paragraph 30;
Candu (Minister of National Revenue) v.
Gee, (2002)
F.C.A. 4, at paragraph 15; Hardman v. Atomic Energy of Canada Ltd.,
[1997] F.C.J. No. 477, at paragraph 13).
[14]
The trial
judge distinguished these cases. She appears to have been of the view that the
reasons given by the investigator were sufficient in themselves to explain the
dismissal of the complaint, but she questioned the fact that the Commission had
approved them. In her view, [translation]
“The fact that the Commission read the investigator’s report does not mean the
Commission endorsed it” (reasons, paragraph 11). With respect, that is an
error of law.
[15]
Assuming arguendo
that the wording of the reasons gave rise to the ambiguity mentioned by the
trial judge, namely as to whether the Commission had approved the
investigator’s reasons, the decision must be interpreted so as to validate the
reasons, not so as to make them illegal.
[16]
In the
case at bar, it may be infered that, by adopting the investigator’s recommendation,
after indicating that it had reviewed his report, the Commission approved the
reasons given by the investigator. This reading is the only legitimate one in
the light of the case law, which has approved this approach for a great many
years.
[17]
The duty
of the Commission to set out reasons for its decision involves explaining to
the complainant why his or her complaint will not be dealt with. When such
explanations are confined to the investigation report, the Commission by
affirming them, enables the complainant to see why the complaint was
dismissed. Further, the respondent cannot seriously contend that it did not
know precisely why its complaint was dismissed.
[18]
For these
reasons, I would allow the appeal with costs, set aside the judgment of the
Federal Court and, in accordance with the judgment that should have been
rendered, I would dismiss the application for judicial review with costs.
“Marc
Noël”
I
concur.
M.
Nadon J.A.
I
concur.
J.D.Denis
Pelletier J.A.
Certified
true translation
François
Brunet, LLB, BCL
FEDERAL
COURT OF APPEAL
SOLICITORS
OF RECORD
DOCKET: A-171-05
Appeal from order by the Honourable Madam
Justice Tremblay-Lamer, dated March 23, 2005, in docket T-1097-04
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. PUBLIC SERVICE ALLIANCE OF CANADA
PLACE OF HEARING: Ottawa
DATE OF HEARING: December 6, 2005
REASONS FOR JUDGMENT BY: Noël J.A.
CONCURRED IN BY: Nadon J.A.
Pelletier
J.A.
DATED: December 12, 2005
APPEARANCES:
Jan Brongers FOR
THE APPELLANT
James Cameron FOR
THE RESPONDENT
SOLICITORS OF RECORD:
John, Sims FOR
THE APPELLANT
Deputy Attorney General of Canada
Ottawa, Ontario
Raven, Allen FOR
THE RESPONDENT
Cameron, Ballantyne & Yazbeck
Ottawa, Ontario
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