Date: 19990315
Docket: T-103-97
BETWEEN:
CAPE BRETON DEVELOPMENT CORPORATION
Applicant
- and -
DAVID HYNES
Respondent
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
REASONS FOR ORDER
MacKAY J.
[1] This is an application by the applicant Cape Breton Development Corporation, for judicial review of a decision by the intervenor, the Canadian Human Rights Commission, dated December 19, 1996. By that decision the Commission advised that, pursuant to then paragraph 41(e) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 as amended1, (the "Act") it would consider the complaint of the respondent, David Hynes, though it related to actions more than one year before the complaint was filed.
[2] The respondent's complaint that he was discriminated against on grounds of disability concerned the termination of his employment by the applicant on June 21, 1991. That action was taken by the applicant under its corrective discipline system following the fourth incident of the respondent leaving work early without permission. In the three previous instances, discipline had resulted in a warning to Mr. Hynes of potential dismissal if incidents of leaving work without permission were to be repeated.
[3] The applicant concedes that the Commission's decision was discretionary under the Act. Nevertheless, it is urged that it should be set aside on the ground that delay on the part of the respondent in filing his complaint, nearly five years after his dismissal, and delay on the part of the Commission in deciding to proceed to investigate the matter, breached the principle of procedural fairness and constitute laches causing prejudice to the applicant. Further, it is urged by the applicant that the Commission's decision to extend the time, without reasons stated, when there was no reasonable basis for doing so, constitutes an error in law.
[4] When this matter came on for hearing on the basis of argument then presented, a further issue was raised by the applicant concerning the fairness of the process followed by the Commission, and, as an aspect of that, concerning appropriate disclosure to one party, in advance of any decision, of submissions made by the other. Written submissions were received following the hearing from the applicant and from the Canadian Human Rights Commission on this matter.
[5] For the record I note that at the hearing the respondent was not present or represented, but written submissions on his behalf were submitted and considered by the Court in addition to the submissions made at the hearing and those submitted thereafter in writing by the applicant and the intervenor.
[6] After a brief overview of the facts I turn to the issues raised, with Reasons for the Order now issued which dismisses the application to set aside the Commission's decision.
The background
[7] The respondent was employed by the applicant for some 12 years from 1979 until his employment was terminated on June 21, 1991. That termination is said to have been for cause in accord with the applicant's policy for discipline of persons who repeatedly left work early without permission. In November 1991, some five months after termination of his employment, the applicant first learned that the respondent claimed he had a disability arising from alcoholism and this was the cause of his employment difficulties and of his termination.
[8] In July 1992 the respondent filed a grievance which was denied by the employer and was not thereafter pursued by the union, a decision by the union said by the applicant to have been based on legal advice then given. Thereafter the applicant and the union submitted the matter to non-binding mediation in July 1992. The mediator recommended reinstatement of the respondent, a recommendation said by the applicant to have been based on certain understandings or conditions, including that the respondent had been involved in a rehabilitation program over 12 months. That was not the case and the applicant advised in September 1992 that the respondent would not be reinstated.
[9] In February 1993 the respondent filed a complaint against his union based on alleged failure to properly represent his interests. That complaint to the Canadian Labour Relations Board was considered and dismissed by the Board in January 1994. It was reconsidered by a different panel of the Board, but again it was dismissed in April of 1994.
[10] In March 1995 the respondent apparently met with newly elected union officers seeking support for reopening his complaint, but that was not done by the union.
[11] In October 1995 the respondent first approached the intervenor, the Canadian Human Rights Commission, about his problem and some months later on May 18, 1996 a formal complaint was filed with the Commission alleging that he had been discriminated against by the applicant on the basis of his disability arising from alcoholism. On October 9 the Commission notified the applicant of the complaint and the applicant was provided with an analysis report prepared by Commission staff. This included a recommendation of the Commission's Complaints and Investigation Director that the respondent's complaint be dealt with by the Commission, pursuant to paragraph 41(e) of the Act. That paragraph provides as follows:
| 41. 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. |
[12] Each of the applicant and the respondent in these proceedings was provided with a copy of the ss. 40/41 analysis report and invited to comment upon it before the matter was referred to the Commission. Both parties apparently made submissions. In the case of the applicant two submissions were made, on October 23 and October 28, 1996. Those submissions urge, for a variety of reasons, including the applicant's contention that the respondent's employment was terminated for cause and that the applicant was unaware, when the respondent's employment was terminated, of the claim of disability arising from alcoholism. The applicant urged that the matter not be pursued, stressing the lapse of time from the act complained of and the laying of the complaint, as well as further delay before the Commission advised of the complaint, and it urged that the delay would cause prejudice to it if the matter were further considered.
[13] The submissions of the applicant and of the respondent, together with the recommendations of the Commission staff were put before the Commission. It determined that the complaint should be considered. This decision was communicated to each of the parties by separate letters. Those letters were different in the sense that each made reference to the consideration by the Commission of the submissions made by the addressee of the letter but it did not make reference to consideration of submissions received from the other party. No reasons were stated for the Commission's decision which was communicated to both of the parties in the same words, as follows:
| The Commission has decided to exercise its discretionary power to extend the time limit within which the complaint may be filed. The Commission has therefore decided pursuant to paragraph 41(e) of the Canadian Human Rights Act, to deal with complaint even though the act complained of occurred more than one year before the receipt of the complaint by the Commission. |
The issues
[14] The parties express the issues raised by this application in somewhat different terms. I deal with the first two issues as expressed by the applicant, and the third, as I perceive it, that was raised in the course of the hearing. In these terms, the issues are
| 1) Do the delays on the part of the respondent and the Commission constitute laches and a breach of the rules of procedural fairness, and have they caused prejudice to the applicant such that the Commission should be precluded from allowing the complaint to proceed? |
| 2) Did the Commission exceed its jurisdiction and err in law by ignoring the statutory time limit provided by paragraph 41(e) of the Act, and by extending the time when there was no reasonable basis for doing so? |
| 3) Did the Commission breach the principle of procedural fairness in reaching its decision and in particular without disclosing, before its decision, submissions of the respondent and without setting out reasons which in its view would warrant extending the time? |
Analysis
[15] It is well settled, as all parties agree, that decisions of the Commission under paragraph 41(e) are discretionary administrative decisions.2 Decisions of that nature are not readily set aside, and courts will not interfere, even if they might have exercised the discretion differently, where the discretion has been exercised in good faith, in accord with the principle of natural justice and procedural fairness, and where reliance has not been placed on considerations that are irrelevant or extraneous to the statutory purpose.3
[16] It is also to be noted that the decision here in question is a preliminary decision. The Commission is bound to accept for consideration a complaint filed in accord with s.41, unless there are exceptional circumstances as set out in paragraphs (a) to (e) of that section. Where a complaint is filed more than a year after the act or situation giving rise to the complaint, the Commission is bound to consider whether it should be dealt with, under paragraph (e). Even if it does decide to do so, that is a preliminary decision that precedes the designation of an investigator to investigate the complaint. The decision in question here is not a decision on the merits of the complaint.4
Delay on the part of the respondent and the Commission
[17] The applicant contends that the delay in filing a complaint by the respondent and the delay by the Commission in advising the company about the complaint are extreme. It learned of the complaint more than five years after the event giving rise to it, that is, the termination of the respondent's employment. Those delays, it is urged, compromise the applicant's ability to give full answer and defence to the respondent's complaint. It is said this offends the public interest in the fair and expeditious processing of complaints. The respondent has already utilized other avenues of redress and the applicant has already defended its decision, in the grievance process, in the mediation process, and in its involvement in the Canada Labour Relations Board's process concerning the respondent's complaint against his union.
[18] It is urged the applicant will be prejudiced by the decision of the Commission if the complaint is considered. That prejudice arises from the fact that at least four senior officials who were directly involved in the decisions concerning disciplinary action against the respondent, and his ultimate termination, have since left the company. One of them is deceased and at least one now resides in Western Canada. It is said the passage of time will result in faded memories and documentary evidence may be missing.
[19] I agree with the Commission that the decision of the Commission here in question concerns only the period of delay from the one year limitation period after the respondent's termination until the filing of his complaint in May 1996. It is that period that the Commission, in its discretion, may decide to waive and to proceed with investigation of the complaint pursuant to paragraph 41(e). That delay will be a factor in considering whether the complaint is to be investigated. In itself, that delay can not be the basis for a conclusion that the Commission's decision breached the principle of procedural fairness.
[20] As for the delay, from May to October 1996, some five months from the filing of the respondent's complaint until the applicant was formally advised of it by the Commission, I am not persuaded that this was unreasonable in the circumstances, or that in itself that delay would warrant intervention by the Court.
[21] Without doubt, the lapse of time since the termination of the respondent's employment will result in some fading of memories of the persons involved at the time. It may result in some difficulty in establishing documentary evidence but there is not evidence of this at this stage. Nor is there any evidence of prejudice, aside from the case of one deceased person, since there is not evidence that the others directly involved on behalf of the company are not available, if required, to give evidence.5 In sum, the claim of potential prejudice to the applicant if the complaint is investigated, which is the next stage in the Commission's process, is premature. Evidence that would support that claim may well be of importance in the investigation and in considering what may ultimately be determined on the merits of the respondent's complaint.
[22] Thus, in the circumstances I am not persuaded that the Commission's decision breached principles of procedural fairness purely because of the delay arising by late filing of the complaint, or in advising the applicant of it. Nor am I persuaded on the basis of evidence before me at this stage, which was essentially the evidence from the applicant before the Commission at the time of its decision, that the decision will cause unreasonable prejudice to the applicant, or compromise its ability to respond to the complaint by the respondent.
A reasonable basis for exercise of discretion
[23] In reliance upon my colleague, Mr. Justice Muldoon, in Canada (Attorney General) v. Canadian Human Rights Commission et al.6 the applicant urges that the time limit established in paragraph 41(e) of the Act is intended to benefit the respondent to a complaint filed with the Commission, in this case the employer, and the Commission must give some indication why it decides to deprive the employer of that benefit. Reliance is also placed upon Tsai v. Human Right Commission (Can.),7 where the Court of Appeal supported the Commission's assessment of a complaint as presenting no arguable case in a decision not to extend the time for filing. It is urged that the Commission is required to make such an assessment in this case. In my view, Tsai is of no assistance here, for there the Court of Appeal merely recognizes that if it is clear to the Commission that the complainant has no arguable case that factor may be considered in reaching a decision not to extend the time for filing a complaint. Here that is not clear, for the merits of the complaint are in dispute. Moreover, in my view, the comments of Muldoon J. in the case above cited should be read in light of the ultimate burden in an application for judicial review of a discretionary administrative decision. Ultimately, it is not for the Commission to establish that its decision is reasonable. Rather the burden is upon the applicant to persuade the reviewing Court that the decision is unreasonable, in the sense that it is contrary to law, it violates principles of fairness or it is not supportable on the evidence before the Commission.
[24] In reliance upon the decision of a Human Rights tribunal in Vermette v. Canadian Broadcasting Corporation,8 the applicant urged that a time-barred complaint may be dismissed where there is no reasonable justification why the employer should be deprived of the benefit under paragraph 41(e). The applicant sets out the factors in this case which the tribunal in Vermette indicated were appropriate in considering reasonable justification. Those factors include the delay of the complainant, the delay of the Commission, the reasons for delay, reasons for the Commission's decision to proceed, prejudice to the applicant and the public interest, and finally the merits of the case. I have already commented upon the delays of the complainant and of the Commission in this case, and the applicant's claim to prejudice to its interests and the public interest.
[25] No reasons were here specified by the Commission, a matter I propose to deal with in discussing below the requirements of procedural fairness. The ss. 40/41 analysis report submitted to the Commission, and provided in advance to the parties, does make reference to the respondent's efforts to pursue the matter through other processes, including reference to an allegation that only some five months had passed from his last attempt to resolve the matter through another process. That fact the applicant disputes and urges in any event it is irrelevant in light of the long delay following termination of the respondent's employment. I do not agree that the pursuit of other processes was irrelevant, in light of paragraph 41(a) which provides the Commission shall deal with a complaint when filed unless it appears to the Commission that the complainant ought to exhaust grievance or review procedures otherwise reasonably available.
[26] I am not persuaded that the merits of the case are relevant except where it is plain and obvious that the complaint does not present any arguable case; as in Tsai, supra. That may then support a decision not to extend the time for filing in order to consider a complaint. Where on the submissions of the parties, the merits are at issue and have not been investigated or finally considered, the merits are not appropriately assessed in an application for judicial review. That is the circumstance here. The submissions of the applicant, made to the Commission and considered by it, urge that there is no merit to the complaint, in particular urging that the respondent was treated as any other employee for disciplinary reasons, and with no knowledge on the part of the employer of the respondent's alcoholism. On the other hand, the submissions of the respondent to the Commission set out considerations contrary to some of those urged by the applicant. Those differences await investigation, which the decision of the Commission would permit. In these circumstances I am not persuaded that the Commission's decision can be considered unreasonable. It has an obligation to consider complaints filed, even if out of time, where in the discretion of the Commission the complaint warrants investigation.
[27] In the circumstances of this case, I am not persuaded that the Commission's decision can be said to be unreasonable or made without regard to the evidence before it.
Procedural fairness and the Commission's decision
[28] In the course of argument the applicant submitted that in the absence of any expressed reasonable basis for the Commission's decision, either in advance of or in the decision itself, the Commission breached the principle of fairness. I am not persuaded that the Commission, in making the preliminary decision to consider a complaint filed more than a year after the act or event giving rise to it, is required to give reasons. Its decision is an administrative discretionary decision. The parties were advised about the recommendation to be made for a decision and provided opportunity for them to make submissions, which they were assured would be submitted to the Commission, and they were so submitted. That process satisfies requirements for procedural fairness, without the necessity of notice in advance, or as part of its decision, about reasons for its determination.9
[29] In the course of argument, counsel for the Commission made reference to the respondent's illiteracy at least until 1993 as a factor that might well have been considered by the Commission. For the applicant it was urged that even if this were so, the respondent's claimed illiteracy as set out in the information from the respondent, did not explain the long delay in filing the complaint. More important, it is urged that there was no notice of that as a factor to be considered by the Commission, and that the applicant should have had such notice in light of the principle of fairness. I am not persuaded there is any indication that the respondent's comparative illiteracy was a factor that was given consideration by the Commission, though it was included in submissions of the respondent that went forward to the Commission. It was not a matter entirely unknown to the applicant.
[30] In another respect, it was urged during the hearing that the Commission's process violated the principle of fairness. The applicant submits that the differences in letters of advice to the applicant and to the respondent about the Commission's decision constituted two decisions and that failure to disclose to the applicant the submissions of the respondent, before the decision was made, breached procedural fairness to which the applicant was entitled.
[31] I am not persuaded there were two decisions. The letters to the respective parties made reference only to their own submissions and assured that these had been before the Commission, but the actual decision of the Commission was conveyed in the same words in each of the two letters, as quoted earlier in these Reasons. There was only one decision.
[32] When each of the parties was advised of the "Section 40/41 Analysis" report and of the recommendation to be made to the Commission, and was invited to comment, each was also advised that the written comments of both parties would be submitted to the Commission. In relation to the preliminary decision here in question that process, and the subsequent submission of the comments of both to the Commission, satisfied requirements of procedural fairness, without any necessity of cross-disclosure of submissions of one party to the other before the decision was made.
[33] In sum, the process followed by the Commission did not breach any principles of procedural fairness that would warrant intervention by the Court.
Conclusion
[34] In the circumstances of this case, the decision of the Commission, to investigate pursuant to paragraph 41(e) the respondent's complaint, though it was filed more than a year after the action alleged to be discriminatory, was made in the proper exercise of its discretion. The process leading to the Commission's decision did not breach the principle of natural fairness. The decision was supportable on the evidence before the Commission. The Commission did not exceed its jurisdiction.
[35] An Order goes dismissing the application for judicial review. The Order provides that each party shall bear its own costs.
Judge
OTTAWA, Ontario
March 15, 1999.
__________________1 Section 41 of the Act became s-s. 41(1) by S.C. 1995, c. 44, s. 49, in force Oct. 24, 1996, SI 96-93, 13 Nov. 1996.
2 Canada (Attorney General) v. Canadian Human Rights Commission and Boone (1993), 60 F.T.R. 142 at 153 -156; Canada (Attorney General) v. Merrick (1996), 1 F.C. 704 at 712-713, 105 F.T.R. 1 at 5-6 (F.C.T.D.).
3 Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7-8; Canada Post Corp. v. Canadian Human Rights Commission et al., (1997) 130 F.T.R. 241 at 244.
4 Canada (Attorney General) v. Burnell et al., (1997) 131 F.T.R. 146 at 153.
5 See, e.g., Canada (Attorney General) v. Canadian Human Rights Commission and Boone, supra, note 2 at pp. 158-159.
7 (1988), 91 N.R. 374 at 377 (F.C.A.).
8 (1994), 94 C.L.L.C. at 17,034, upheld on judicial review (1996), 120 F.T.R. 81.
9 See Burnell, supra , note 4, and see also Boone, supra, note 2.