Docket: A-440-13
Citation:
2015 FCA 109
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CORAM:
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RYER J.A.
NEAR J.A.
RENNIE J.A.
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BETWEEN:
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CLEMENT DUNCAN HICKS
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Appellant
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and
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CANADIAN NATIONAL RAILWAY
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Respondent
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REASONS
FOR JUDGMENT
RENNIE J.A.
[1]
In a decision dated March 20, 2013, the Canadian
Human Rights Commission (the Commission) dismissed a complaint made by Mr.
Hicks (the appellant) against his former employer, Canadian National Railway
(the respondent).
[2]
The appellant was a railway mechanic with the
respondent until 2002, when he was dismissed for violating the respondent’s
alcohol and drug policy. With the encouragement of CAW Local 100, Rail Division
(the union), and with the assistance of the respondent’s employee assistance
program, from 2002-2006, the appellant sought reinstatement through attendance
at addiction treatment programs including at the Credit Valley Hospital. The
appellant states that in December 2005, Dr. Doyle, an addiction specialist at
Credit Valley, considered him fit to return to work. The respondent, however,
sought an opinion from a doctor retained by it. Dr. Sutton examined the
appellant on behalf of CN and gave him a negative evaluation on February 7,
2006.
[3]
On October 13, 2009, the union informed the
appellant that no grievance would be filed against the respondent or further
efforts made to seek reinstatement.
[4]
Three years later, on September 18, 2012, the
appellant filed his complaint with the Commission, alleging discrimination on
the basis of disability. In that complaint, the appellant identified the
February 7, 2006 evaluation by Dr. Sutton as the last of the alleged
discriminatory acts which formed the basis of the complaint.
[5]
The Section 40/41 Report (the report) released
by the Commission on November 28, 2012 recommended dismissing the appellant’s
complaint pursuant to section 41(1)(e) of the Canadian Human Rights Act,
RSC 1985, c H-6 (the Act), because the complaint was based on acts that
occurred more than one year before the complaint was filed.
[6]
In response to the report, the appellant made
various representations to the Commission, in which he explained his delay in
filing his complaint as attributable to his reliance on union grievance
mechanisms and problems arising from his disability. He also alleged that he
had communications with the Commission to the effect that he should exhaust
internal recourse mechanisms before proceeding with a complaint.
[7]
After reviewing the report and the parties’
submissions made in response, the Commission dismissed the appellant’s complaint
on the grounds that the last discriminatory act occurred more than one year
before receipt of the appellant’s complaint, and that it was “not appropriate to deal with the complaint because the
complainant did not do everything that a reasonable person would do in the
particular circumstances to proceed with the complaint.”
[8]
On December 4, 2013, Justice Manson of the
Federal Court (the judge) dismissed Mr. Hicks’ application for judicial review
of the Commission’s decision (2013 FC 1220). Importantly, the judge found that
the Commission failed to analyze whether the appellant’s disabilities may have
affected the appellant’s capacity to file his complaint within the time limits.
However, he found this error to be of no consequence given that no medical
evidence was presented to the Commission. The judge also held that the
Commission’s finding that the delay would prejudice the respondent was not
purely speculative.
[9]
Subsequent to the judge’s decision, Sharlow JA
granted the appellant’s motion to introduce new evidence on appeal, consisting
of medical reports from 2009 and 2013.
[10]
In an appeal of a judgment concerning a judicial
review application, the role of this Court is to determine whether the
application judge correctly identified and properly applied the standard of
review to the Commission’s decision (Agraira v Canada (Public Safety and
Emergency Preparedness), 2013 SCC 36 at para 47).
[11]
The judge correctly identified the standard of
review as reasonableness. The Federal Court’s task involved a determination as
to whether the Commission’s decision, viewed as a whole, was reasonable (Exeter
v Canada (Attorney General), 2012 FCA 119 at para 6).
[12]
I am of the view that the Commission’s decision
was unreasonable and therefore the appeal should be allowed. I reach this
conclusion for three reasons.
[13]
First, the Commission was under a duty to
consider whether the applicant’s failure to file his complaint within the one
year time period following his meeting with Dr. Sutton in February, 2006, or
following the exhaustion of internal remedies in late October 2009, could be
explained by the appellant’s disability. The judge found, and I agree, that the
Commission failed to analyze the appellant’s disability and the possible impact
of this disability on the delay in filing.
[14]
The respondent contends that the Commission’s
failure to examine this issue is of no consequence because there was no medical
evidence which would support a conclusion that the appellant’s disability
affected his ability to file. In my view, there was evidence before the
Commission, albeit not in the form of formal medical reports, but in the documents
and submission before the Commission attesting to the appellant’s continuing
treatment and therapy for mental illness. There is also the fresh evidence on
appeal, which was not before the Federal Court. This evidence suggests that the
appellant had undergone surgery for an aneurism in 2009. In sum, there was
evidence before the Commission, now supplemented by fresh evidence, which if
considered, could have lead the Commission to conclude that his failure to file
was attributable to a medical disability.
[15]
Second, the appellant contended before the
Commission that he did not file because he understood, based on discussions
with the Commission, that the Commission would not consider his complaint until
he exhausted recourse and grievance remedies available to him under his collective
agreement.
[16]
In assessing the period of delay the Commission
did not consider this explanation. This affects the reasonableness of the
exercise of discretion, as it was not until October 13, 2009, that the union
advised the appellant that it would not pursue his reinstatement further and
considered the matter closed. On the basis of this evidence, the period of
delay was not the 10 years assumed by the Commission, but rather began on
October 13, 2009.
[17]
Finally, while the Federal Court judge concluded
that the evidence of prejudice was “weak at best”, there was no evidence of
prejudice. CN’s submission to the Commission as to prejudice did not include
any evidence of witnesses or documents no longer available; rather CN simply
stated that it would be “unreasonable” to ask it to respond to a complaint
under the circumstances.
[18]
In sum, these three reasons, when considered
together, are sufficient for me to conclude that the decision of the Commission
was unreasonable.
[19]
Accordingly, I would allow the appeal, with
costs at $350.00, all inclusive, set aside the order of the Federal Court,
dated December 4, 2013, and making the order that the Federal Court could have
made, I would allow the application for judicial review and refer the matter of
the timeliness of the appellant’s complaint back to the Commission for
reconsideration in accordance with these reasons.
"Donald Rennie"
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“I agree”
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C. Michael Ryer
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“I agree”
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D.G. Near
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