Date: 20170202

Docket: T­629­16

Citation: 2017 FC 128

[ENGLISH TRANSLATION]

Montreal, Quebec, February 2, 2017

PRESENT:  The Honourable Madam Justice St­Louis

BETWEEN:

2553­4330 QUÉBEC INC.

Applicant

and

LAURENT DUVERGER

Respondent

JUDGMENT AND REASONS

I.  Nature of the matter

[1]  The applicant, 2553­4330 Québec Inc. [Aéropro], is seeking judicial review of a decision by the Canadian Human Rights Commission [the Commission] that was made on March 30, 2016, deciding to deal with complaint #20131146 from the respondent, Laurent Duverger, and citing subsection 41(1) of the Canadian Human Rights Act, RSC 1985, c H­6 [the Act], which is reproduced in the appendix.

[2]  Aéropro is applying to the Court to set aside that decision and to refer the matter back to the Commission for re­determination.

[3]  For the reasons set out below, the Court will dismiss the application for judicial review.

II.  Facts

[4]  Starting on May 12, 2008, Mr. Duverger was employed by Aéropro and held a position as a meteorological observer at the Chibougamau station, and on June 21, 2010, he resigned.

[5]  Since Mr. Duverger is a French citizen, he initially worked under temporary resident status, as a worker. In May 2009, he became a permanent resident of Canada and on July 16, 2013, he became a citizen of Canada.

[6]  On March 8, 2012, Mr. Duverger filed a claim with the Commission de la santé et de la sécurité du travail [CSST] for an employment injury that he had allegedly suffered while working for Aéropro. The CSST rejected his claim, judging it to be out of time, but on June 27, 2013, the Commission des lésions professionnelles [CLP] set aside that decision and granted Mr. Duverger’s claim.

[7]  In August 2013, Mr. Duverger also filed a complaint for wage recovery and other benefits through the Human Resources and Skills Development Canada [HRSDC] Labour Program. His complaint was assigned to an inspector who ordered Aéropro to pay Mr. Duverger the amount of $6,730. Aéropro appealed this decision before a referee appointed under the Canada Labour Code, RSC 1985, c L­2. The referee refused the evidence that Mr. Duverger wanted to file in connection with his medical condition, which as a result was not considered. The referee set aside the inspector’s decision and instead found that Mr. Duverger’s remedy was time­barred.

[8]  The referee’s decision was subsequently affirmed by our Court and by the Federal Court of Appeal (Duverger v 2553­4330 Québec Inc (Aéropro), 2015 FC 1131, aff’d 2016 FCA 243).

[9]  On November 28, 2013, more than three years after his employment ended, Mr. Duverger filed a complaint with the Commission against Aéropro. He alleges (1) pay inequity due to his national origin and his disability; and (2) harassment for those same reasons following the end of his employment.

[10]  On October 29, 2014, the Commission decided not to deal with Mr. Duverger’s complaint. In its Section 40/41 Report dated July 21, 2014, the Commission noted in particular that Mr. Duverger was challenging the amount that the CLP had given him. Thus, ultimately, the Commission found that the complaint was vexatious within the meaning of paragraph 41(1)(d) of the Act because Mr. Duverger’s allegation of discrimination had already been handled as part of the CLP appeal process.

[11]  The Court allowed the application for judicial review that Mr. Duverger filed regarding that decision (Duverger v 2553­4330 Québec Inc (Aéropro), 2015 FC 1071). It found that the Commission’s Section 40/41 Report was too general and that it failed to specifically indicate the questions that had been raised and settled by the CLP. The Court found that Mr. Duverger’s complaint on the one hand dealt with the defamation and discriminatory harassment that he allegedly suffered after resigning from his position on June 21, 2010, and on the other hand dealt with the difference in increases to his hourly wage as compared to what was given to other employees. The Court found that the CLP had not ruled on the issue of overtime and vacation days, on setting discriminatory hourly wages or on the issue of the harassment after June 21, 2010. The Court then returned the file to the Commission for reconsideration.

[12]  Following that decision by the Court, Mr. Duverger sent new evidence to the Commission, including explanations as to the delay in filing his complaint, supported by a certificate from a psychiatrist.

[13]  This new evidence was not sent to Aéropro, which did not send anything new to the Commission.

[14]  On January 14, 2016, the new Section 40/41 Report [New Report] was sent to the parties. In it, the Commission investigator found that Mr. Duverger’s complaint was not vexatious within the meaning of paragraph 41(1)(d) of the Act, and could be dealt with despite the period of time before its receipt according to paragraph 41(1)(e), and she recommended that the complaint be dealt with.

[15]  In paragraph 35 of the New Report, the investigator referred to the documents that were received regarding Mr. Duverger’s medical condition.

[16]  In January and February 2016, the parties each sent their submissions in response to this New Report.

[17]  Aéropro emphasized in particular that it would suffer significant prejudice if the Commission opened an investigation, given the impossibility of contacting certain employees to prepare its defence. However, in its submissions, Aéropro did not address the evidence related to Mr. Duverger’s medical condition, which was indeed mentioned in the New Report.

[18]  On March 30, 2016, the Commission decided to deal with the complaint. The Certificate in accordance with rule 318(1)(a) of the Federal Courts Rules, SOR/98­106, produced by the Commission, confirms the documents that it had in order to make its decision, which were (1) the new Section 40/41 Report from January 14, 2016, with appendix; (2) Mr. Duverger’s written submissions from January 19, 2016; (3) Aéropro’s written submissions from February 5, 2016; (4) Mr. Duverger’s written submissions from February 24, 2016; (5) the summary of the complaint; and (6) the complaint form from November 26, 2013.

[19]  As part of this application for judicial review, Aéropro is challenging only the Commission’s decision to consider the allegation of wage inequity based on national origin and disability and its finding that this allegation is receivable under paragraph 41(1)(e) of the Act, despite the passing of more than three years from the end of Mr. Duverger’s employment to the filing of his complaint.

[20]  Thus, the Commission’s decision to deal with the allegation of harassment for those same reasons following the end of his employment is not at issue in this case.

III.  The Commission’s decision

[21]  The Commission therefore determined that it would deal with the wage discrimination complaint. It found that Aéropro did not describe the efforts made to contact certain former employees, therefore not allowing it to find that it was impossible to relocate them at this preliminary stage. The Commission also indicated that had Aéropro been acting prudently and responsibly, Aéropro would have taken steps to stay in contact with important witnesses. It added that the evidence of irreparable harm resulting from the delay could be submitted during the investigation.

[22]  The Commission also considered Mr. Duverger’s medical condition and disability, conditions that he used to justify the delay before the filing of his complaint.

[23]  Therefore, the Commission decided to exercise its discretion and deal with the allegation of wage inequity, even though this inequity had allegedly stopped more than three years before the filing of the complaint, since Aéropro did not establish any prejudice and Mr. Duverger explained the delay.

IV.  Issues

[24]  This Court must first determine the appropriate standard of review then consider whether the Commission made a reviewable error by deciding to deal with Mr. Duverger’s complaint. In particular, this Court must answer the following questions:

1. Was it reasonable for the Commission to deem the complaint receivable, despite being based on acts or omissions the last of which occurred over a year before, and did it err in law?

2. Did the Commission fail in its duty of procedural fairness?

3. Was it reasonable for the Commission to decide to deal with the complaint?

V.  Positions of the parties

A.  Aéropro

[25]  Aéropro essentially argues that the Commission’s decision is without merit in fact and in law. It maintains that the Commission acted without jurisdiction, overstepped its jurisdiction, and refused to exercise it by deciding to deal with Mr. Duverger’s complaint, which is based on acts or omissions the last of which occurred more than three years before receipt of the complaint.

[26]  It also maintains that the Commission did not observe the principles of procedural fairness, that it made a decision that erred in law and that was founded on erroneous findings of fact that were made abusively, arbitrarily and without considering the evidence at its disposal.

[27]  It submits that questions of mixed fact and law are reviewed on the standard of reasonableness and that questions of law are reviewed on the standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). It adds that questions relating to natural justice or procedural fairness must be assessed in accordance with the standard of correctness (Via Rail Canada Inc v Cannon, 2015 FC 989 at paragraph 17).

(1)  Delay of more than three years

a)  Prejudice suffered by Aéropro

[28]  Aéropro insists on the fact that Mr. Duverger filed his wage inequity complaint more than three years and five months after his employment ended. Aéropro submits that such a delay prevents it from benefiting from full answer and defence, since it is no longer in possession of exchanged emails and correspondences and is no longer in contact with witnesses whom it deems to be important.

b)  Mr. Duverger was not prevented from acting

[29]  In addition, according to Aéropro, Mr. Duverger took several actions and made several efforts showing that he was not prevented from acting and that he would have been able to file his complaint with the Commission within one year as specified by paragraph 41(1)(e) of the Act. In particular, Aéropro refers to Mr. Duverger’s active search for employment, to the job interviews that he had, and the Employment Insurance claim that he prepared and sent, all in June 2010. Aéropro also refers to Mr. Duverger’s move from Chibougamau to Gatineau and the signing of a residential lease there in September 2010, along with him getting a new job at an airport in December 2011. Lastly, Aéropro notes that Mr. Duverger sought a remedy before the CSST in March 2012, that he challenged the CSST’s decision before the CLP in June 2012, and that he filed a complaint with the HRSDC’s Labour Program in August 2013.

[30]  Aéropro also notes that the arguments stated by Mr. Duverger to justify his three­year delay before filing his complaint were already rejected by the referee in his decision dated February 18, 2015. The referee found that Mr. Duverger was not unable to act between June 21, 2010, and June 21, 2013 (2553­4330 Québec Inc. (“Aeropro”) v Duverger, 2015 LNSARTQ 40 at paragraph 52), and his decision was affirmed by the Federal Court and the Federal Court of Appeal, as mentioned previously.

[31]  Thus, Aéropro argues that it was not reasonable, but rather “patently unreasonable” for the Commission to decide to deal with this allegation of the complaint.

c)  Errors in law

[32]  According to Aéropro, the Commission made an error in law by imposing the burden of proof on Aéropro, even though it was Mr. Duverger who filed the complaint out of time. According to Aéropro, the Commission [translation] “fully addressed the ‘prejudice’ to the applicant regarding the out­of­time filing of the respondent’s complaint”, without explaining “why the respondent’s complaint deserved to be processed under the circumstances of the case” (Aéropro’s emphasis, Aéropro’s factum at paragraphs 54–55). Aéropro refers to Confédération des syndicats nationaux v Goyette, 2004 FC 1175 [Goyette], which repeats the following remarks by the Federal Court of Appeal in Canada Post Corporation v Barrette, [2000] 4 FC 145 (CA) at paragraph 23 [Barrette]: “Section 41 imposes a duty on the Commission to ensure, even proprio motu, that a complaint is worth being dealt with.” Aéropro also repeats paragraph 32 of Goyette, in which the Court finds that “the Commission did not consider all of the factors relevant to exercising its discretionary power; it only considered the prejudice that the delay caused the CSN and the Fédération.”

[33]  The Commission made a second error in law by indicating that Aéropro could submit evidence of irreparable harm caused by the delay during the investigation. In that regard, Aéropro refers to the Federal Court decision in Canadian Broadcasting Corporation v Judge, 2002 FCT 319 at paragraph 63 [Judge]:

Significantly, the Court of Appeal found that while there was no duty to investigate at the preliminary screening stage, the Commission is required to investigate on a prima facie basis whether the grounds set out in section 41(1) are present, and if so, to decide whether to deal with the complaint. However, the Commission may not simply ignore or routinely dismiss submissions made by a party at the preliminary stage on the ground that in any event the affected party will have the opportunity to repeat its submissions at the screening stage.

[34]  According to Aéropro, [translation] “by finding that the applicant in any case would have the possibility of arguing the prejudice that it had suffered during the investigation, it is clear that the [Commission] was poorly guided in law” (Aéropro’s factum at paragraph 64).

[35]  Lastly, Aéropro submits that the Commission did not address the main elements with which it had been presented, those being the many actions taken and efforts made by Mr. Duverger, which clearly show that he would have been able to file his complaint in a timely manner, and the fact that all of the arguments stated by Mr. Duverger to justify his three­year delay before filing a complaint had been rejected by a board of referees, as previously discussed. Hence, “the Court of Appeal found that unless the Commission addresses the issues raised by the affected party, it neglects a duty imposed by law. [...] Unless the Commission turns its mind to the issues raised by the person against whom a complaint is made, in this case the employer, it neglects a duty imposed by law” (Judge at paragraphs 63–64).

[36]  Aéropro submits that those errors in law require the application of the standard of correctness.

(2)  Procedural fairness

[37]  Regarding the New Report, Aéropro alleges that it was prepared:

• a) Without asking Aéropro beforehand to provide its submissions regarding paragraph 41(1)(e) of the Act, contrary to what had been indicated by the Commission in the previous Section 40/41 Report dated July 21, 2014;

• b) Without asking Aéropro’s counsel beforehand to provide submissions regarding paragraph 41(1)(e) of the Act, when the Commission knew that Aéropro was now represented by counsel, and considering that said counsel had represented it before the Federal Court;

• c) Based simply on the submissions that Aéropro had provided nearly two years earlier, when it was not represented by counsel;

• d) Without sufficiently addressing or raising Aéropro’s submissions (three paragraphs totalling 15 lines), as compared to Mr. Duverger’s submissions (nine paragraphs totalling 62 lines);

• e) On the basis of submissions and new evidence submitted only by Mr. Duverger, copies of which Aéropro did not receive.

(3)  Commission’s decision to deal with Mr. Duverger’s complaint

[38]  Aéropro draws the Court’s attention to paragraph 39 of the Commission’s New Report in order to affirm that all of the elements on record argued in favour of not dealing with the respondent’s complaint:

[translation]

n terms of the seriousness of the allegations and the type of human rights­related issues that were raised, it is not clear that those allegations have to do with discrimination within the meaning of the Act, since the link between the alleged wage inequity and the complainant’s national or ethnic origin seems unclear. In particular, the wage inequity allegation dates back to a specific period that ended several years ago. Lastly, as discussed below in the “Background” section, it is not clear whether section 14 of the Act includes harassment that occurred several years after the employment relationship ended. Under those circumstances, the complaint appears to raise a private issue rather than questions of public interest. (Aéropro’s emphasis)

[39]  According to Aéropro, the Commission allegedly decided to deal with Mr. Duverger’s complaint before the New Report was completed to prevent the file from being rejected at a preliminary stage for a second time and showed [translation] “total disinterest in the submissions made by the applicant in addition to being without merit in law” (affidavit from Aurèle Labbé, at paragraph 27).

B.  Mr. Duverger

[40]  Mr. Duverger submits that the Commission’s decision is well founded in fact and in law and that it is reasonable. He says that he agrees with the New Report’s findings and recommendations.

[41]  Mr. Duverger notes that he could not file a complaint with the Commission before July 2013 because of his post­traumatic stress and his depression, and also because of the fear of losing his status in Canada. He denies having any job interviews in 2010.

[42]  Mr. Duverger submits that Aéropro did not show that it would suffer prejudice as a result of the delay, since it did not submit information such as the date of its last contact with certain employees and the efforts it made to contact them. This lack of information did not allow the Commission, at this preliminary stage, to determine whether Aéropro would genuinely suffer prejudice because of the delay.

[43]  In particular, Mr. Duverger refers to article 2904 of the Civil Code of Québec, CQLR, c CCQ­1991. However, he makes other arguments that are not directly related to this application for judicial review and instead deal with the basis of the matter on which the Commission will have to decide and on which the Court will therefore not be taking a position.

VI.  Standard of review

[44]  The Commission’s decision to exercise the discretion granted to it under paragraph 41(1)(e) of the Act and to allow the delay that it felt was warranted under the circumstances must be reviewed on the standard of reasonableness (Richard v Canada (Treasury Board), 2008 FC 789 at paragraph 10 [Richard]).

[45]  The Commission’s decision whether to deal with a complaint is also subject to the standard of reasonableness (Bergeron v Canada (Attorney General), 2015 FCA 160 at paragraph 41 [Bergeron]; Duverger v 2553­4330 Québec Inc, 2015 FC 1071 at paragraph 17).

[46]  The errors in law must be reviewed on the standard of correctness (Walsh v Canada (Attorney General), 2015 FC 230 at paragraph 20).

[47]  Lastly, although there is some uncertainty regarding the applicable standard of review for breaches of procedural fairness (Bergeron at paragraphs 67–71), the standard of correctness is appropriate under the circumstances, since it is the most generous standard for the applicant (El­Helou v Canada (Courts Administration Service), 2016 FCA 273 at paragraph 43).

VII.  Analysis

A.  Was it reasonable for the Commission to deem the complaint receivable, despite being based on acts or omissions the last of which occurred over a year before, and did it err in law?

(1)  Reasonableness

[48]  Under paragraph 41(1)(e) of the Act, the Commission has the discretion to deal with a complaint that is based on acts or omissions the last of which occurred more than one year before receipt of the complaint:

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.

[49]  Paragraph 41(1)(e) does not impose any specific criteria for exercising this discretion. As indicated by Justice Martineau in Richard, “[t]herefore, it is left to the Commission to devise any relevant criteria pertaining to the exercise of its discretion” (at paragraph 8). The Commission thus reviews the length of the delay, the good faith of the complainant and the reasonableness of his explanations, as well as the extent of the prejudice suffered by the affected party by the late filing (Bredin v Canada (Attorney General), 2006 FC 1178 at paragraph 51; Canada (Revenue Agency) v McConnell, 2009 FC 851 at paragraphs 42–43).

[50]  In this case, after reviewing the record, the Court finds that the Commission’s decision is reasonable.

[51]  To determine the reasonableness of a decision, the Court must examine the “justification, transparency and intelligibility within the decision­making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at paragraph 47). Some deference must be shown to the decision­maker, the Commission, considering its expertise and experience in interpreting and applying the Act and considering that this is an exercise of discretion (O’Grady v Bell Canada, 2012 FC 1448 at paragraphs 27 and 36).

[52]  Thus, the Court finds that it was reasonable for the Commission to accept Mr. Duverger’s explanations as to his inability to act sooner, relying in particular on his medical situation, a factor that had not been reviewed previously by the referee.

[53]  Additionally, it was also reasonable for the Commission to find that Aéropro did not succeed in establishing prejudice, since the record reveals that its evidence in that regard is limited to rather general statements indicating that Mr. Duverger’s direct superiors, at the time of the facts that led to the complaint, had not worked for Aéropro for a long time.

[54]  The Commission’s decision to exercise its discretion to deal with the complaint despite the delay is reasonable because it falls within a range of possible, acceptable outcomes in light of the facts and law.

(2)  Error in law

[55]  According to Aéropro, the Commission allegedly imposed all of the burden of proof on Aéropro, even though it was Mr. Duverger who had filed a complaint out of time, thus making an error in law.

[56]  However, the Commission obtained explanatory evidence from Mr. Duverger regarding his situation, specifically the letter from his psychiatrist, and considered that evidence in its decision. It did not restrict its review to Aéropro’s situation and thus did not impose all of the burden of proof on Aéropro.

[57]  Next, the Court finds that the Commission did not err in law by indicating that Aéropro could submit evidence of irreparable harm during the next stage of the investigation, since Aéropro simply did not present this evidence during the first stage (Barrette at paragraph 24). As previously mentioned, Aéropro limited its submissions at that stage to general allegations.

[58]  Lastly, although the Commission did not mention each of the elements presented by Aéropro, the Court notes that the Commission is presumed to have weighed and considered all of the evidence before it and finds that the Commission reviewed the submitted evidence, since the Tribunal’s findings rely on the evidence (Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 at paragraph 1 (FCA); Alkoka v Canada (Attorney General), 2013 FC 1102).

B.  Did the Commission fail in its duty of procedural fairness?

[59]  With respect to the duty of procedural fairness, it is appropriate to cite the Court’s remarks in Slattery v Canada (Human Rights Commission), [1994] 2 FC 574 (aff’d [1996] FCJ No 385 (CA)):

[55] In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant’s and respondent’s interests in procedural fairness and the CHRC’s interests in maintaining a workable and administratively effective system....

[56] Deference must be given to administrative decision­makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted.

[60]  Thus, Aéropro received the New Report and in it was able to read that new evidence existed regarding Mr. Duverger’s medical condition. However, in the submissions that it sent to the Commission, Aéropro did not address this issue.

[61]  In spite of the fact that the new evidence (sent by Mr. Duverger to the Commission prior to the New Report) was not sent to Aéropro, Aéropro learned about it in the New Report. Aéropro was invited to send its submissions, and in fact sent submissions, but did not address the new evidence. The Court finds that there was no violation of procedural fairness.

C.  Was it reasonable for the Commission to decide to deal with the complaint?

[62]  Guided by the standard of reasonableness, the Court will only intervene if the Commission’s decision does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law; and if it “is not supported by any reasons that can stand up to a somewhat probing examination” (Canada (Director of Investigations and Research) v Southam Inc, [1997] 1 SCR 748 at paragraph 56).

[63]  The Supreme Court of Canada’s remarks in Cooper v Canada (Canadian Human Rights Commission), [1996] 3 SCR 854 at paragraph 53 allow for the Commission’s role at this stage to be defined:

When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission’s role, then, is that of assessing the sufficiency of the evidence before it.

[64]  Given this explanation, this Court finds that the Commission’s decision is reasonable.

D.  Conclusion

[65]  This Court finds that the Commission’s decision to consider the complaint receivable, despite being based on acts or omissions the last of which occurred more than one year before receipt of the complaint, is reasonable and that the Commission did not err in law, that it did not fail in its duty of procedural fairness, and that the Commission’s decision to deal with the complaint is reasonable.

[66]  At the hearing, Mr. Duverger withdrew his application for costs and therefore, the Court will not award any.

JUDGMENT

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed;

2. Without costs.

“Martine St­Louis”

Certified true translation

This 22nd day of January 2020

Lionbridge

APPENDIX

FEDERAL COURT

SOLICITORS OF RECORD

	Docket:	T­629­16
STYLE OF CAUSE:		2553­4330 QUÉBEC INC. v LAURENT DUVERGER
PLACE OF HEARING:		Ottawa, Ontario
DATE OF HEARING:		December 14, 2016
JUDGMENT AND REASONS:		ST­LOUIS J.
DATED:		February 2, 2017

APPEARANCES:

Steven Côté	FOR THE APPLICANT
Laurent Duverger	FOR THE RESPONDENT (ON HIS OWN BEHALF)

SOLICITORS OF RECORD:

Thivierge Labbé Quebec City, Quebec

FOR THE APPLICANT