Cohen v. Canada (Attorney General), 2007 FCA 190

Date: 20070515

Docket: A-278-06

Citation: 2007 FCA 190

CORAM:       SEXTON J.A.

                        MALONE J.A.                      

                        RYER J.A.

BETWEEN:

JOSHUA K. COHEN, B.A., M.A.

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

Heard at Ottawa, Ontario, on May 3, 2007.

Judgment delivered at Ottawa, Ontario, on May 15, 2007.

REASONS FOR JUDGMENT BY:                                                                             MALONE J.A.

CONCURRED IN BY:                                                                                                 SEXTON J.A.

                                                                                                                                           RYER J.A.

Date: 20070515

Docket: A-278-06

Citation: 2007 FCA 190

CORAM:       SEXTON J.A.

                        MALONE J.A.                      

                        RYER J.A.

BETWEEN:

JOSHUA K. COHEN, B.A., M.A.

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT

MALONE J.A.

[1]               This is an appeal from a judgment of Hughes J., a Judge of the Federal Court (the Applications Judge), dated May 17, 2006 and reported at 2006 FC 608.

[2]               The appellant had failed to secure a position under the Federal Management Training Program and filed a complaint with the Canadian Human Rights Commission (Commission) on March 25, 2004 (First Complaint) against the Public Service Commission of Canada (PSC). 

[3]               Mr. Cohen did not seek judicial review of the Commission’s decision dated July 5, 2004, which dismissed this First Complaint on the basis that he had failed to establish a link to a prohibited ground of discrimination specific in the Canadian Rights Act, R.S.C. 1985 c. H-6 (the Act).  Instead, Mr. Cohen filed a second complaint more than a year later.

[4]               On September 2, 2005, the Commission dismissed the second complaint on the grounds that it was out of time and also refused to exercise its discretion to extend time.

[5]               At the hearing of the judicial review application, Mr. Cohen argued that the second complaint was an amendment to the first complaint and should not have been rejected as being out of time.  He also argued that in the event that the second complaint was a new complaint, the Commission should have granted an extension of time.

[6]               The Applications Judge concluded that the first complaint was dismissed by the Commission on its merits, prior to his filing the second complaint.  He also determined that the Commission’s decision to not extend the one-year limit, which was discretionary in nature, was not patently unreasonable.  Consequently, he dismissed the judicial review application.

[7]               In my analysis, the Applications Judge committed no factual or legal errors that warrant the intervention on appeal, but one further issue requires comment: i.e. whether the Commission provided adequate reasons when it refused to extend the time for Mr. Cohen to file his second complaint.

[8]               In its July 5, 2005 submissions, the PSC informed the Commission that the facts surrounding the second complaint did not lend itself to the exercise of discretion under paragraph 41(1)(e) of the Act and that it should not extend the time limit beyond the one-year time limit.  The PSC indicated that an extension of time would be highly prejudicial in the context where staffing decisions had been made and positions had been filed.  The final decision that was issued by the Commission on September 2, 2005, (Exhibit 36), incorporates the investigator’s letter (Exhibit 28) and the submissions of the PSC, dated July 5, 2005, (Exhibit 8).  The letter reads as follows:

Before rendering its decision, the Commission reviewed the analysis and the recommendation contained in the letter sent to you previously, and any submission(s) filed in response to the letter.

[9]               The Commission is permitted to incorporate by reference either an investigator’s reports/letters or the submissions of parties, all of which can form part of its reasons (see Canada (AG) v. Sketchley, [2006] 3 F.C. 392; Gardner v. Canada, 2005 FCA 284).  Here, the PSC submission of July 5, 2005 provides adequate reasons as to why the Commission should not exercise its discretion and extend time and was incorporated by reference by the Commission in its decision of September 2, 2005.  Accordingly, the rules of natural justice have not been breached and the requirements of subsection 42(1) of the Act have been satisfied.

[10]           The appeal should be dismissed without costs.

“B. Malone”

“I agree.

     J. Edgar Sexton J.A.”

“I agree.

     C. Michael Ryer J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-278-06

APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED MAY 17, 2006, FEDERAL COURT FILE NO. T-1710-05

STYLE OF CAUSE:                                                              JOSHUA K. COHEN, B.A., M.A. v. THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                                        Ottawa, Ontario

DATE OF HEARING:                                                          May 3, 2007

REASONS FOR JUDGMENT BY:                                     MALONE J.A.

CONCURRED IN BY:                                                         SEXTON J.A.

                                                                                                RYER J.A.

DATED:                                                                                 May 15, 2007

APPEARANCES:

SOLICITORS OF RECORD: