Date: 19990920
Docket: T-104-98
OTTAWA, ONTARIO, SEPTEMBER 20, 1999
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
BRUCE BRINE
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA and
CANADA PORTS CORPORATION
Respondents
ORDER
For the reasons given, this judicial review is allowed, with costs, the decision of the Commission refusing to deal with Mr. Brine's complaint is set aside and the matter is remitted to the Commission for reconsideration.
"François Lemieux"
J U D G E
Date: 19990920
Docket: T-104-98
BETWEEN:
BRUCE BRINE
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA and
CANADA PORTS CORPORATION
Respondents
REASONS FOR ORDER
LEMIEUX J.:
A. INTRODUCTION
[1] This judicial review proceeding, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, is by Bruce Brine (the "applicant") whose employment was terminated as Supervisor at Halifax, Nova Scotia, in Ports Canada Police maintained and operated by the respondent Canada Ports Corporation ("Ports Canada"). Mr. Brine challenges a decision by the Canadian Human Rights Commission ("CHRC" or the "Commission") dated December 11, 1997, not to deal with his complaint alleging his termination was unlawful being based on a prohibited grounds of discrimination " disability and in particular, mental disability.
[2] Neither the CHRC nor the Attorney General for Canada participated in these proceedings; the burden of resisting the applicant fell upon Ports Canada.
[3] The applicant advances three grounds in support for orders by this Court quashing the CHRC's decision and requiring the CHRC to deal with his complaint in accordance with law:
| (a) failure by the CHRC to consider a report made by Commission investigator M. Dunphy, dated March 27, 1997; |
| (b) breach of procedural fairness; and |
| (c) the unreasonableness of the CHRC's decision not to deal with his complaint. |
B. THE COMMISSION'S DECISION
[4] The Commission's decision is contained in a letter to the applicant dated December 11, 1997, and reads in its material parts:
| Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously as well as your submission dated October 24, 1997 and the submission dated August 8, 1997 signed by Robert L. Barnes and the respondent's submission dated August 6, 1997, signed by Alan J. Stern. After examining this information, the Commission decided not to deal with the complaint. The reasons for the Commission's decision are as follows: |
| Pursuant to section 41(1)(d) of the Canadian Human Rights Act, the Commission has resolved not to deal with the complaint because: |
| on April 18, 1995, the complainant entered into an agreement with the respondent; |
| this agreement, which the complainant signed on the advice of his legal representative, states that the complainant is satisfied that the respondent has satisfied all its obligations under the Canada Labour Code and the Canadian Human Rights Act. |
C. THE RELEVANT STATUTORY PROVISIONS
[5] The substantive provisions relevant to this application are contained in sections 3, 7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended ("the Act"). They read as follows:
| 3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. (2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. 7. It is a discriminatory practice, directly or indirectly,
on a prohibited ground of discrimination. 10. It is a discriminatory practice for an employer, employee organization or employer organization
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. [emphasis mine] |
3. (1) Pour l'application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience. (2) Une distinction fondée sur la grossesse ou l'accouchement est réputée être fondée sur le sexe. 7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects_:
10. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite et s'il est susceptible d'annihiler les chances d'emploi ou d'avancement d'un individu ou d'une catégorie d'individus, le fait, pour l'employeur, l'association patronale ou l'organisation syndicale_:
|
[6] The relevant statutory procedural provisions are contained in Part III of the Act. This part of the Act provides for the making of complaints (section 40); the circumstances where the Commission is not required to deal with a complaint (sections 41 and 42); the investigation of complaints (section 43), the consideration by the Commission of an investigator's report and the courses of action which may be taken by the Commission (section 44).
[7] Subsections 41(1), 43(1) and (2) and sections 42 and 44 of the Act read as follows:
| 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
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. (2) Before deciding that a complaint will not be dealt with because a procedure referred to in paragraph 41(a) has not been exhausted, the Commission shall satisfy itself that the failure to exhaust the procedure was attributable to the complainant and not to another. |
41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants_:
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. (2) Avant de décider qu'une plainte est irrecevable pour le motif que les recours ou procédures mentionnés à l'alinéa 41a) n'ont pas été épuisés, la Commission s'assure que le défaut est exclusivement imputable au plaignant. |
||||||||||
| 43. (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint. (2) An investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4). |
43. (1) La Commission peut charger une personne, appelée, dans la présente loi, "l'enquêteur", d'enquêter sur une plainte. (2) L'enquêteur doit respecter la procédure d'enquête prévue aux règlements pris en vertu du paragraphe (4). |
| 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation. (2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
it shall refer the complainant to the appropriate authority. (3) On receipt of a report referred to in subsection (1), the Commission
(4) After receipt of a report referred to in subsection (1), the Commission
[emphasis mine] |
44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête. (2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas_:
(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_:
(4) Après réception du rapport, la Commission_:
|
D. PROCEDURAL HISTORY AND BACKGROUND FACTS
(a) The complaint
[8] On March 17, 1996, the applicant filed a complaint with the Commission. He alleged Ports Canada discriminated against him in employment by refusing to continue to employ him because of his disability (nervous breakdown) contrary to section 7 of the Act.
[9] The applicant particularized his complaint this way:
| (i) due to work related pressures, he started receiving assistance from a stress counsellor in September 1993 through Ports Canada's Employee Assistance Program who was then aware he had a stress related disability; |
| (ii) in January 1995, he had work problems with the second in command in his unit; his second in command made an allegation to Ports Canada the applicant had abused his authority; |
| (iii) on January 25, 1995, the Chief Superintendent of Ports Canada came to Halifax to investigate issues relating to the applicant's management of his unit and a few days after the arrival of the Chief Superintendent, Mr. Brine went on sick leave for a stress related ailment. |
| (iv) the recommendation by the Chief Superintendent after his investigation was that the applicant should receive counselling; |
| (v) while on sick leave, his employment was terminated by Ports Canada on March 29, 1995 alleging cause; |
| (vi) he was never given an opportunity to defend himself against the allegations of abuse of authority and said he was released because of his nervous breakdown. |
(b) Some steps in the Commission's investigation
[10] On June 10, 1996, the Commission advised Ports Canada of the applicant's complaint. The Commission sought from Ports Canada information on the reasons for termination, a copy of Ports Canada's internal investigation concerning the allegation by the second in command the applicant had abused his authority, the approximate date when Ports Canada first became aware of the applicant's stress related disability and details of Ports Canada's policies and practices concerning employees who suffer from stress related illness.
[11] Ports Canada answered the Commission's June 10, 1996 letter through its solicitors. On July 19, 1996, Ports Canada's solicitors forwarded responses to the information sought by the CHRC. Ports Canada's solicitors outlined their fundamental position:
| Our client's position with regard to the allegations in the Complaint is that the termination of Mr. Brine was related solely to his misconduct. Given Mr. Brine's position of extreme trust, the misconduct that took place could not be tolerated. The decision to terminate the employment of Mr. Brine was not based in any way on the "nervous breakdown" as alleged by the Complainant. |
| Mr. Brine and his legal counsel were advised about the serious allegations of misconduct and Mr. Brine entered into a comprehensive settlement agreement with his employer. |
| Mr. Brine was not treated differently from other employees who were away from work for stress-related ailments in terms of consideration of their illness. However, his serious misconduct did result in treatment of his employment status that would be different than the treatment of employees who did not engage in serious misconduct. [emphasis mine] |
[12] Other aspects of the Commission's investigation are revealed through the investigation report identified as the Dunphy Report.
(c) The Dunphy Report
[13] Mr. Dunphy, a CHRC investigator, investigated the applicant's complaint. He produced a report dated March 27, 1997; this report was received by the Commission on April 4, 1997. The Dunphy Report is in two parts: first, a two-page document entitled "INVESTIGATION REPORT " RAPPORT D'ENQUÊTE". It was signed by Mr. Dunphy but not countersigned by the Director or the Director, Compliance, Anti-Discrimination Programs Branch. Second, is a seven page analysis by Mr. Dunphy containing forty-five paragraphs.
[14] In terms of investigation findings, the Dunphy Report said this:
| 41. Investigation confirms that the complainant enjoyed a progressive career with the respondent and was promoted to a Superintendent at Halifax in April 1993. Investigation shows that the complainant started to demonstrate stress related symptoms for which he sought psychological, psychiatric, and medical assistance. |
| 42. Investigation shows that, in January 1995, during a respondent investigation of the complainant having abused his authority, they obtained additional information from a respondent secretary [in Mr. Brine's unit] and the General Manager of the Halifax Ports Corporation regarding allegations of unacceptable performance by the complainant. |
| 43. Investigation shows further that during the investigation, the Chief Superintendent witnessed the complainant exhibiting symptoms of an emotional breakdown, and that the Chief Superintendent recommended to the respondent [Ports Canada] on 30 January 1995, that the complainant was under intense emotional strain and that psychological counselling and time-off were in order. |
| 44. Investigation shows that on 29 March 1995, two months following the Chief Superintendent's recommendation that the complainant receive psychological counselling and take time-off, and while the complainant was off on sick leave, the respondent [Ports Canada] presented the complainant with a letter that his employment was to be terminated. Evidence provided by the complainant's psychologist shows that the complainant was not emotionally capable of representing his interests when he signed the settlement. |
[15] Mr. Dunphy recommended to the Commission a conciliator be appointed to attempt to bring about a settlement of the complaint.
[16] In the report analysis Mr. Dunphy summarizes the facts and evidence submitted by the applicant and examines in detail, Ports Canada's position as expressed in the letter of July 19, 1996 from Ports Canada's solicitors, including all of the back-up documentation provided with that letter and specifically the January 30, 1995 memorandum from the Chief Superintendent of Ports Canada to the Director General of Ports Canada related to his investigation of the applicant's second in command abuse of authority allegation. From the report, it appears Mr. Dunphy confronted Mr. Brine with the reasons alleged by Ports Canada for his termination and obtained his comments on Ports Canada's position.
[17] Mr. Dunphy referred to letters provided to the applicant by persons from whom Mr. Brine had sought medical assistance during this period. In particular, Mr. Dunphy mentions a medical report dated April 7, 1995, from the applicant's physician stating the applicant had been admitted to the hospital one day "for rapid AFib following stressful event". Also mentioned was a letter dated September 16, 1996 from the applicant's psychologist who confirmed the applicant had four counselling sessions commencing March 8, 1995 through May 5, 1995. Mr. Dunphy states the psychologist mentioned the applicant had initially come to see him as a result of work related stress and subsequently as a result of being released from employment. The letter from the psychologist states the applicant initially presented as "very depressed" and related he had seen previous counsellors. Mr. Dunphy reports the psychologist stated further the applicant was suffering from debilitating anxiety and depression, and he was subsequently referred to a psychiatrist for longer term treatment.
[18] Mr. Dunphy, in his analytical report, reproduces the concluding remarks made by the Chief Superintendent Ports Canada in his memorandum dated January 30, 1995, following his investigation of the abuse of authority matter:
| This coupled with the fact that he does have a volatile temper and carries a firearm leads me to suggest that some psychological counselling with some time off may well be in order at this time for both (the complainant's) well being as well as the members of the Detachment. |
[19] What happened to the Dunphy Report is hard to piece together. The CHRC did not provide any affidavit in this judicial review application. What is known is that the Dunphy Report was not circulated to the applicant or to Ports Canada for comment as is usual Commission practice and as required by procedural fairness. Furthermore, it is known the Dunphy Report was not considered by the members of the Commission when making their decision not to deal with Mr. Brine's complaint. The certified tribunal record prepared by the Secretary of the Commission pursuant to Rule 317 of the Federal Court Rules lists the documents that were before the Commission when the Commission made its decision not to deal with the applicant's complaint. One of the documents provided by the Secretary of the CHRC was a chronology of events which said this:
| 15-04-96 Complaint signed |
| 04-04-97 Investigation report received from contractor |
| 04-09-97 File reassigned to RER |
| 25-07-97 Section 40/41 report |
| 25-07-97 Disclosure begins |
| 06-08-97 Submission from respondent |
| 08-08-97 Disclosure ends |
| [emphasis mine] |
(d) The Raymond Analysis
[20] From the Commission's chronology of events, it is known the applicant's complaint was reassigned to RER, the initials of Rae Raymond, Human Rights Officer at the Canadian Human Rights Commission. Again, little is known in the record how Mr. Raymond proceeded in the conduct of his duties. He did not provide any affidavit in these proceedings. What is known is that he prepared a document dated July 25, 1997 entitled "SECTIONS 40/41 ANALYSIS" which is a one-page document with no analytical back-up as was seen with the Dunphy Report. This is not surprising because sections 40 and 41 of the Act authorize Commission action not to deal before a substantive investigation of a complaint takes place.
[21] Mr. Raymond summarizes some facts and makes a recommendation. Under recommendations, Mr. Raymond wrote:
| 2. Upon notification of the complaint, the respondent [Ports Canada] provided a defence, which included a copy of the Release Agreement signed by the complainant and his legal representative on 18 April 1995. A copy of the release is attached as Appendix A. The complainant continued to receive regular salary from March, 1995 through July, 1995 and then was eligible for a severance package of 11 eleven months gross salary. |
| 3. The Release which the complainant signed on advice by his legal representative states that the complainant is satisfied that the respondent has satisfied all of its obligations under the Canada Labour Code and the Canadian Human Rights Act. The complainant states that he was not psychologically capable of making a decision concerning the Release, and the legal advice he received did not address the Human Rights or Labour Canada issues. In August, 1996 the complainant's physician confirmed the complainant was under extreme stress in April 1995 and was not in a position to negotiate the settlement. The complainant believes the complaint should be dealt with as it deals with issues concerning disability and the refusal of continued employment. |
| 4. The complainant lodged a Labour Canada unjust dismissal complaint on 17 October 1995, to which the respondent took objection citing the Release as binding and precluded the complainant from further actions. Noting the complainant's argument that he was not in a position to make appropriate decisions, according to the medical evidence, the adjudicator ruled on 02 June 1997 that the agreement was binding on both parties. |
| 5. It is recommended that the Commission not deal with the complaint, because of an agreement signed between the parties. |
| [emphasis mine] |
E. POST RAYMOND ANALYSIS DEVELOPMENTS
[22] On July 25, 1997, Sherri Helgason, Manager, Complaints and Investigations at the Commission, wrote to the applicant and to Ports Canada advising:
| The investigation into the complaint filed by Bruce Brine against Canada Ports Corporation alleging discrimination in employment on the ground of disability has been completed. A copy of the investigator's report is attached for your review. This report will be submitted to the Commission at one of its upcoming meetings, along with any comments we receive from you or the complainant. |
| As you will see from the investigation report, it is being recommended that the Commission not deal with the complaint because the complainant entered into an agreement with the respondent. The Commission may accept or reject this recommendation. If you would like to comment on the report, you can do so by writing to the undersigned. [emphasis mine] |
[23] The Tribunal record reveals that the applicant's solicitors responded to the Commission's invitation by forwarding two letters. The first letter is dated August 8, 1997 commenting on the Labour Code Adjudicator's decision. The applicant's solicitors said this:
| Although the settlement agreement was upheld by the Labour Code Adjudicator, he did so because he was applying a very stringent legal test with respect to Mr. Brine's "capacity" to execute a binding legal agreement. In order to overturn this type of agreement on the basis of mental incapacity, it is necessary to show that the illness suffered by the party rendered him incapable of understanding or appreciating the nature of the document before him. |
| Although Mr. Brine did not meet this test of legal incapacity, the evidence clearly confirmed the severity of his disability, and the inappropriateness of signing off on his legal rights at that time. The evidence also disclosed that the employer was very aware of his mental condition, both at the time of his termination, and at the time the settlement was negotiated. Essentially, the employer used "hardball' tactics, including allegations of dismissal for cause, and the withdrawal of salary and benefits, as the means to obtain Mr. Brine's signature on the settlement agreement. The employer clearly took advantage of Mr. Brine's vulnerability at a time when the employer was aware of his weakened emotional and mental status. |
[24] On August 12, 1997, the applicant's solicitors further wrote to Sherri Helgason. The applicant's solicitors enclosed a medical report from Dr. Edwin M. Rosenberg who is the applicant's treating psychiatrist. Attached to Dr. Rosenberg's report was an earlier medical report from Dr. Selwyn M. Smith, describing a serious depressive illness. The applicant's solicitors said "that, like the
other treating specialists, Dr. Rosenberg confirmed that Mr. Brine was not in a condition where he ought to have been signing off on his legal rights".
[25] Mrs. Brine also made a personal submission on her husband's behalf.
[26] The Canadian Mental Health Association also made a submission dated September 11, 1997 which stated:
| Sadly, Mr. Brine's case resembles that of many other mental health consumers who have had to cope with emotional, often work-related problems in an unsupportive environment. Frequently the employee's difficulties are amplified when the realities of stressful working conditions and related emotional problems are denied by the employer. Is it acceptable that such individuals are asked to take decisions in an emotionally charged and unsupportive environments, at a time when they are extremely vulnerable? Employees can be presented with a "take it and leave" offer which can be viewed as a form of coercion into accepting an unsatisfactory resolution. Employers then, can hide behind a shield indicating that an agreement has been reached. We are extremely concerned that this is what may have occurred in Mr. Brine's case. |
[27] Ports Canada, through its solicitors, responded on August 6, 1997 in the following way:
| Thank you for your letter of July 25, 1997, enclosing a copy of the investigator's report. |
| Our client is prepared to rely on its submission dated July 19, 1996; however, by way of a further comment we wish to point out that Mr. Brine pursued a claim under the Canada Labour Code and we had a hearing before an Adjudicator on April 1st and 2nd, 1997. |
| In his decision, dated June 2, 1997, the Adjudicator rejected arguments that the settlement agreement was void for uncertainty or unconscionable. He stated that: |
| The settlement agreement and release, when read together, contain all necessary terms and are capable of enforcement. |
| He therefore declared that the settlement agreement and release were binding on the parties and declined to hear the complaint of unjust dismissal on its merits. |
[28] In this judicial review proceedings, the applicant filed an affidavit in support. He was not cross-examined. Ports Canada filed a responding affidavit through the deposition of David Cuthbertson, Executive Vice-President of Ports Canada, dated February 23, 1998, as follows:
| 3. I have read the Affidavit of Bruce Brine, sworn the 23rd day of January, 1998, and noted the references to documents appended thereto. |
| 4. During the course of the investigation by the Complaints and Investigations Department of the Canadian Human Rights Commission, additional documentation was provided to the Department in a letter from Alan J. Stern, Q.C., dated July 19, 1996, and a copy of that letter, including enclosures, is appended to this Affidavit as Exhibit "A". |
| 5. An investigation report of the Complaints and Investigations Department was provided by letter dated July 25, 1997, and a copy of the letter and enclosed recommendations are appended to this Affidavit as Exhibit "B". |
| 6. By decision dated June 2, 1997, the Adjudicator under the Canada Labour Code declared that the settlement agreement and release were binding on the parties and a copy of that decision is appended to this Affidavit as Exhibit "C". |
[29] When filing the originating notice of motion for judicial review the applicant requested the CHRC provide a certified copy of the following materials in its possession.
| Copies of all memoranda, internal office communications, correspondence and documents which provide analysis of, reasons for, or which show participation in, the decision by the Canadian Human Rights Commission to refuse to deal with the complaint of Bruce Brine. |
[30] When the applicant received Mr. Cuthbertson's responding affidavit, he sought permission from the Court to file a reply affidavit. That permission was granted by order of Muldoon J., on May 8, 1998. In that reply affidavit, Mr. Brine said in part:
| 2. The Affidavit of David Cuthbertson, filed with The Federal Court Registry in Ottawa, the 23rd day of February, 1998, contains fabricated evidence. This evidence was provided to the Canadian Human Rights Commission and may have influenced its decision to deny my application for a Tribunal review of my claim of discrimination by my previous employer, the Ports Canada Corporation. |
| 3. I was not informed of this evidence and had no opportunity to respond to it prior to the Commission reaching its decision. I did not know of this evidence until it was provided in the Affidavit of David Cuthbertson in response to my Originating Notice of Motion in this judicial review procedure. |
| 4. There are references in the letter of Mr. Alan J. Stern, to Mr. Raminder Singh of the CHRC, dated July 19, 1996, [Affidavit of Bruce Cuthbertson, Tab A] to statements, memos and letters of members of the Ports Canada Police. These referenced statements, memos and letters contain fabricated evidence. |
[31] When the applicant's solicitors received the certified record from the Commission, there was no production of the Dunphy Report. By notice of motion dated July 31, 1998, the applicant moved the Court for the production of the Dunphy Report. That order was granted by Hugessen J. on September 15, 1998.
F. THE LABOUR ADJUDICATOR'S DECISION
[32] On June 2, 1997, Bruce Outhouse, who had been appointed adjudicator by the Minister of Labour pursuant to the Canada Labour Code to hear Mr. Brine's complaint of unjust dismissal, rendered a decision on whether the settlement and release signed by Mr. Brine and Ports Canada were valid such as to constitute an effective bar to the Labour Code proceedings on their merits.
[33] The release agreement contained the following clause:
| 2. For the said consideration, I further acknowledge that the Employer has satisfied all of its obligations under the Canada Labour Code and the Canadian Human Rights Act. I waive any right of complaint and covenant not to lodge a complaint pursuant to the above-mentioned Code or Act. |
[34] Adjudicator Outhouse ruled the settlement agreement and release to be binding on the parties and he declined to hear the complaint of unjust dismissal on its merits.
[35] Counsel for Mr. Brine made argument to the Adjudicator that the settlement and release were invalid and ineffectual for two reasons. First, counsel argued there had been no meeting of the minds between the parties on two points:
| (a) on how Mr. Brine's termination should be characterized (Mr. Brine was vehemently opposed to any notion he was dismissed for cause); and |
| (b) on the contents of a proposed letter of reference. |
If valid, counsel for Mr. Brine said that Ports Canada had breached the agreement and release in such a manner as to constitute repudiation of both documents. Second, Mr. Brine's counsel argued the settlement agreement was unconscionable and referred to the circumstances in which Mr. Brine found himself at the time of execution. Counsel said Mr. Brine was "disabled and vulnerable".
[36] Adjudicator Outhouse ruled against Mr. Brine on both points. On the issue of unconscionability, he adopted the three-part test enunciated by Hallett J. in Stephenson v. Hilti (Canada) Ltd. (1989), 93 N.S.R. (2d) 366 (N.S.S.C., T.D.) at pages 370 and 371, as follows:
| (1) That there is an inequality of bargaining position arising out of ignorance, need or distress of the weaker party; |
| (2) The stronger party has unconscientiously used a position of power to achieve an advantage; and |
| (3) The agreement reached is substantially unfair to the weaker party or, . . . it is sufficiently divergent from community standards of commercial morality that it should be set aside. |
[37] On the first two parts of the test, at page 51 of his reasons, the Adjudicator said:
| ... I am prepared to assume that the evidence before me is sufficient to establish the existence of the first two requirements - namely, an inequality of bargaining position and the unconscientious use of a position of power. [emphasis mine] |
In his view, Mr. Brine failed on the third element. Adjudicator Outhouse was of the view the settlement was not "substantially unfair" to the complainant because the notice period was in accordance with what the courts in Nova Scotia were awarding.
G. ANALYSIS
(a) The Commission's role
[38] The role of the Commission has been authoritatively determined by the Supreme Court of Canada in Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854. In Cooper, that Court had an opportunity to consider and build upon two of its previous judgments analyzing the functions of the Commission, namely Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 and Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
[39] In my view, the reasons for judgment of La Forest J. in Cooper, (supra), establish the following propositions as to the Commission's role and functions:
| (1) It is an administrative and screening body with no appreciable adjudicative role (page 893); |
| (2) It is the statutory body entrusted with accepting, managing and processing complaints of discriminatory practices (page 889); |
| (3) When deciding whether a complaint should proceed to be inquired into by a Human Rights Tribunal, the Commission fulfils a screening function somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to decide 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 of the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it (page 891); and |
| (4) The Commission has the power to interpret and apply its enabling statute but does not have a jurisdiction to address general questions of law (page 891); |
H. THE STANDARD OF REVIEW
(a) The approach
[40] The Court of Appeal and the Trial Division of this Court have recently had the opportunity to adjudicate on a number of cases challenging various decisions of the Commission. The nature and impact of these challenges on the complainant or the respondent (usually the employer) vary considerably.
[41] The vast majority of the CHRC's decisions reviewed by the Court concern Commission action in the final stage in its screening process where the Commission, after the receipt of an investigator's report, must decide whether to request the establishment of a Human Rights Tribunal to adjudicate on the complaint (and where appropriate remedies may be granted if a complaint has been made out) or whether to dismiss a complaint which ends the matter. The Commission's action, in such circumstances, is based on subsection 44(3) of the Act when the Commission "is satisfied", "having regard to all of the circumstances of the complaint" an inquiry into the complaint is warranted or not warranted. Very recent decisions of the Federal Court of Appeal on this type of Commission decision are Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113, where the Court reviewed a CHRC decision to request the establishment of a Human Rights Tribunal and Holmes v. Attorney General of Canada, file A-430-97, April 29, 1999, considering and discussing an appeal from the Trial Division in a case in which the Commission had dismissed a complaint after investigation. See also Ernst Zundel v. Attorney General for Canada et al., file T-2765-96, June 15, 1999, where Evans J. considered and dismissed the challenge to a Commission decision to request a Tribunal.
[42] Challenges, however, have been initiated at the more earlier stages of the Commission's screening process. For example, in Canada Post Corporation v. Barrette, [1999] 2 F.C. 250, (F.C.T.D.) Evans J. dismissed a judicial review application in which Canada Post attacked a Commission decision to deal with"to investigate"a complaint of wage discrimination under section 11 of the Act, and in which Canada Post argued the Commission had wrongly applied paragraphs 41(1)(a) , (b) and (e) of the Act. Another example of this type of Commission decision being reviewed is Canada Post Corporation v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241, a decision of Rothstein J., as he then was, who dismissed a Canada Post challenge of a Commission decision to deal with a complaint. Rothstein J.'s decision was recently upheld by the Federal Court of Appeal, file A-402-97, April 29, 1999, per Desjardins J.A. on behalf of the Court.
[43] In contrast, there are only a few decisions of the Court involving cases where the Commission decided under section 41 of the Act not to deal with"not to investigate"a complaint. Examples of such typesof cases are Slattery (No. 2) v. Canadian Human Rights Commission (1994), 81 F.T.R. 1, a decision of MacKay J. dismissing a judicial review application of such a decision and Gill v. Public Service Commission, 25 C.H.R.R. D/439, per Reed J., quashing such a decision.
[44] Décary J.A. in Holmes, (supra), emphasized what the Court said in Bell, (supra), on the proper general approach to be followed by the Court in dealing with the challenges to Commission decisions. First, he focussed on decisions taken by the Commission under section 44 of the Act and quoted this from Bell, supra:
| [35] It is settled law that when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Canadian Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). |
[45] Décary J.A. then set out a global or framework approach for types of cases where the Commission is performing its screening functions on receipt of an investigation report. He said this referring to Bell, supra:
| [38] The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission [1980] 1 F.C. 687 (C.A.), page 698, Le Dain J.A.) but it may be said as a general rule that Parliament did not want the Court at this stage to intervene lightly in the decisions of the Commission. |
| [emphasis mine] |
[46] Décary J.A. concluded the matter with the following words:
| [5] The question before the Commission at this stage was whether, |
| having regard to all the circumstances of the complaint, an inquiry was warranted. The Commission found it was not. There are a number of legitimate reasons or reasonable grounds upon which the Commission could decide the way it did. In reaching a conclusion the Commission is entitled and obligated to have regard to all of the facts and allegations placed before it. In this case, there was sufficient evidence on which the Commission could conclude that further consideration of the matter by a tribunal was not warranted. [emphasis added] |
(b) The specific paragraph 41(1)(d) standard of review
[47] I read the decisions of the Supreme Court of Canada and the Federal Court of Appeal, cited above, as establishing the principle of a general degree of deference to Commission decisions. However, both Courts were sensitive of the principle that the degree of deference to be accorded to particular and specific Commission decisions will depend upon the circumstances, and, in particular, upon the nature of the decision taken and the statutory context. Such an analysis, in my view, points to granting less deference to a Commission decision made under section 41 of the Act not to investigate a complaint as contrasted with the larger degree of deference when the Commission decides, after investigation and a consideration of submissions by affected parties, to dismiss a complaint under section 44 of the Act or to request the constitution of a Human Rights Tribunal to inquire into a complaint which may grant appropriate remedies. Indeed, in my view, within section 41 itself, because of the wording in each paragraph, a varying degree of deference is appropriate because the level of discretion conferred by Parliament to the Commission is not the same in each of those paragraphs in section 41.
[48] For example, under paragraph 41(1)(a), the Commission has for consideration whether the alleged victim of the discriminatory practice to which the complaint relates "ought to" exhaust grievance or review procedures "otherwise reasonably available"; this calls for the determination and appreciation of factors different than where the Commission considers under paragraph 41(1)(d) whether the complaint is trivial, frivolous, vexatious or made in bad faith.
[49] In my view, the text of the Act itself leads to the conclusion I have reached concerning the hard look which the Commission is required to make when deciding not to deal with a complaint.. First, Parliament has indicated there is a prima facie obligation on the Commission to deal with a complaint. Subsection 41(1) says that "subject to section 40, the Commission shall deal with any complaint filed with it unless". Second, when the Commission decides not to deal with a complaint"not to investigate the complaint"it decides, in effect, the merits of that complaint in the sense the complaint is terminated. Third, to stress the importance of such a decision, the Act compels reasons for deciding, the only instance where this is a statutory requirement in respect of Commission decisions.
[50] I find support for my conclusions in two decisions of this Court. In Canada Post Corporation v. C.H.R.C., (supra), a case where the Commission decided to investigate a complaint, Rothstein J. at page 243 of the reported case said this:
| [3] A decision by the Commission under s. 41 is normally made at an early stage before any investigation is carried out. Because a decision not to deal with the complaint will summarily end a matter before the complaint is investigated, the Commission should only decide not to deal with a complaint at this stage in plain and obvious cases. The timely processing of complaints also supports such an approach. A lengthy analysis of a complaint at this stage is, at least to some extent, duplicative of the investigation yet to be carried out. A time consuming analysis will, where the Commission decides to deal with the complaint, delay the processing of the complaint. If it is not plain and obvious to the Commission that the complaint falls under one of the grounds for not dealing with it under s. 41, the Commission should, with dispatch, proceed to deal with it. |
[51] Recently, in Canada Post Corporation v. Barrette, (supra), Evans J. said at page 268 of the reported case:
| [31] Moreover, since the purpose of the statutory scheme is to reduce inequality, and accordingly has been said to possess a quasi-constitutional status, a court should be reluctant to conclude that the Commission has erred by taking too narrow a view of the exceptions to its statutory duty to deal with complaints of discrimination. On the other hand, it is arguable that closer judicial scrutiny is justified when the Commission decides not to deal with a complaint, which will normally be a final disposition of the matter. |
| [emphasis mine] |
[52] Translated into specific application to section 41 cases, I cite the following cases on the standard of review. First, in Lukian v. Canadian National Railway Co. (1994), 80 F.T.R. 38, Jerome A.C.J. said:
| [8] Generally, when Courts are called upon to review the exercise of an administrative tribunal's discretionary power, they will be reluctant to interfere since tribunals, by virtue of their training, experience, knowledge and expertise, are better suited than the judiciary to exercise these powers. Provided the Commission's decision is within the discretion given to it, the court will not interfere with the manner in which it was exercised, unless it can be shown the discretion was exercised contrary to law. What the law requires is the Commission to consider each individual case before it, to act in good faith, to have regard to all relevant considerations and not to be swayed by irrelevant ones, and to refrain from acting for a purpose contrary to the spirit of its enabling legislation or in an arbitrary or capricious manner. |
[53] In Slattery (No. 2), supra, dealing with a 41(1)(d) based Commission decision, MacKay J. at page 9 put it this way:
| [22] There can be no doubt that establishment and management of a process for investigating complaints made under s. 40 is within the discretion of the CHRC under its enabling legislation. In the exercise of that discretion this court should only intervene where it is persuaded the Commission has erred in law or has acted unreasonably. |
| [emphasis mine] |
Later on in his decision, MacKay J. deepened his analysis on the standard of review when he said at page 12:
| [35] For the applicant, written submissions urged that the Commission should treat a complaint in the circumstances of this or any other case, "on the basis that the facts alleged by the complainant are true or are capable of being proven", a standard similar to that of this court in considering a motion to dismiss an action or to strike a pleading on the grounds that no cause of action is established in law. As I read the decision of the Commission, implicitly accepting the recommendation and the reasons of the investigator, that is essentially what was done in this case. It is assumed the facts alleged by the applicant in her complaint are true or capable of proof, but those "facts" do not include her interpretation of the CHR Act. The decision here is that on the facts alleged, no discriminatory practice under the Act is established. That assessment is more than one of fact; it includes assessment of the application of the law to the facts alleged. |
| [36] The determination by the Commission, in its implicit finding that the decision of the adjudicator and the conduct of the mediator did not constitute discriminatory practices under subsection 14(1), ultimately concerns the jurisdiction of the Commission. In that decision, the standard for the court in an application for judicial review, in the light of the decision of the Supreme Court of Canada in Mossop, supra, ... is ultimately the standard of correctness. |
[54] Quoting the Federal Court of Appeal's decision in Williams v. Canada (Minister of Citizenship and Immigration) (1997), 212 N.R. 63, Rothstein J. in Canada Post, (supra), focussing on the words "it appears to the Commission", said this at page 244:
| I think the same approach is called for with respect to s. 41 of the Canadian Human Rights Act. The decision is one for the Commission and the determination is set forth in subjective and not objective terms. Thus the scope for judicial review of such a decision is narrow. Only considerations such as bad faith by the Commission, error of law or acting on the basis of irrelevant considerations are applicable. |
[55] Where a question of jurisdiction was at issue, Rothstein J. adopted the approach of the Court as expressed by Thurlow A.C.J. (as he then was) in Canada (Attorney General) v . Cumming, [1980] 2 F.C. 122 at pages 132-133 of that reported case:
| The preferable course for the court is to leave the Tribunal free to carry out its inquiries and not to prohibit it save in a case where it is clear and beyond doubt that the Tribunal is without jurisdiction to deal with the matter before it. |
[56] Lukian, Slattery No. 2 and Canada Post v. Canadian Postmasters, (supra), illustrate the proposition for a varying degree of intervention in dealing with section 41 Commission decisions.
[57] In the case before me, I adopt the test formulated by MacKay J. in Slattery No. 2, supra. He was dealing with a paragraph 41(1)(d) situation. Depending upon the nature of the error alleged intervention is warranted when the Commission acted unreasonably (the reasonableness standard) or where it erred in law (the correctness standard).
I. THE APPLICATION OF THE PRINCIPLES IN THIS CASE
(a) The statutory duty to consider the Dunphy Report
[58] Despite the lack of a CHRC affidavit in these proceedings explaining how the Commission handled Mr. Brine's complaint, the record is clear:
| (a) The Dunphy Investigation Report was received by the Commission on April 4, 1997; |
| (b) The Dunphy Report was not circulated to the parties for comment which is a procedural requirement of fairness before the Commission decides; |
| (c) Three months later, after receiving the report, the file (Mr. Brine's complaint) was reassigned to Mr. Raymond; |
| (d) Mr. Raymond did not, as such, reinvestigate Mr. Brine's complaint but rather he simply performed a section 40/41 analysis setting out the considerations which might lead the Commission to decide not to deal with Mr. Brine's complaint prior to investigation although an investigation had already been performed; |
| (e) The Dunphy Report was not before the members of the Commission when they decided not to deal with Mr. Brine's complaint under paragraph 41(1)(d) of the Act; |
| (f) The Raymond section 40/41 analysis was before the Commission when it made its decision. So were the Adjudicator's entire reasons. |
[59] The Act is clear in imposing a statutory obligation upon the Commission to consider an investigator's report received by the Commission. A breach of that statutory obligation is a fundamental breach requiring, in my view, setting aside a Commission decision. It is an error of law. A plain reading of section 44 of the Act compels the conclusion that the receipt of an investigator's report is the trigger to any subsequent substantive Commission action.
[60] In Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (F.C.A.) MacGuigan J.A. said at page 464:
| Only the report of the investigator and the representations of the parties are necessary matter for the Commission's decision. Anything else is in the discretion of the Commission. |
At page 465, MacGuigan J.A. said, after analyzing the scheme of the Act and, in particular, section 44:
| Everything happens on the receipt of a report. The report is not only the trigger of Commission action but is also the only document referred to as the basis for a Commission decision as to how to proceed. |
[61] The Pathak case, supra, in my view, stands for the proposition that while the Commission is the master of its own proceedings (an argument forcibly advanced by counsel for Canada Ports before me) and has considerable flexibility in dealing with and managing complaints, such elements do not enable the Commission to ignore what Parliament has procedurally prescribed.
[62] In Lukian v. C.N.R., (supra), Jerome A.C.J. faced a situation where a first investigator's report had been received by the Commission and had been circulated to the parties for comment. Another investigator was designated in the words of Jerome A.C.J. "thereafter, for reasons which are not entirely clear, the defendant requested the Commission to conduct a further investigation into the complaint". The second investigator's report and the parties' submissions were before the Commission when the Commission made its decision. However, the first investigator's report and the parties' comments on that report were not before the Commission when it made its decision. The Associate Chief Justice allowed the judicial review application and set aside the Commission's decision for these reasons:
| [9] The factors to be taken into account by an administrative tribunal when exercising its decision-making powers may, in some cases, be discerned by examining the enabling legislation. In the present case, it is true the Commission is free to adopt or reject the finding of an investigator as set out in his or her report and is not required to examine the complete record of an investigation. Nevertheless, once it designates an investigator under s. 43(1) of the Canadian Human Rights Act, it is my view the Commission is bound to consider the resulting report since that document is indisputably relevant to the question before it of whether the circumstances of the case warrant further action. [emphasis mine] |
[63] Jerome A.C.J.'s view of the matter is confirmed by two recent decisions of the Federal Court of Appeal. In Slattery (No. 1) v. Canada (Canadian Human Rights Commission) (1996), 205 N.R. 383 (F.C.A.), Hugessen J.A. considered an appeal from my colleague Nadon J.'s decision dismissing a judicial review application of a Commission decision based on paragraph 44(3)(b)(i) of the Act. The Commission had dismissed a complaint because the evidence of the allegation of discrimination was unfounded. Hugessen J.A. in dismissing the appeal said:
| We are all of the view that the Commission fully complied with its duty of fairness to the complainant when it gave her the investigator's report, provided her with full opportunity to respond to it, and considered that response before reaching its decision. |
| [emphasis mine] |
[64] In Bell Canada v. CHRC, (supra), Décary J.A. considered its previous decision in Slattery (No. 1), supra. Décary J.A. at page 139 of the reported case dismissed the procedural fairness argument advanced because the Commission did precisely what the jurisprudence of this Court, as recently as in Slattery (No. 1), supra, has told it to do.
[65] The views of Hugessen J. A. in Slattery (No. 1) and Décary J.A. in Bell, (supra), confirm the statutory obligation of the Commission to consider an investigator's report once received as well as the obligation, based on procedural fairness, to obtain comments from the parties on such a report before deciding it. The Commission breached its statutory obligation and procedural fairness in this case. It did not consider the Dunphy Report as required by law before dealing with the complaint and did not have the parties' input on that report before deciding.
(b) Was paragraph 41(1)(d) properly invoked
[66] When the matter came for hearing before me, I pointed out to counsel the fact the Commission framed its decision as authorized under paragraph 41(1)(d) of the Act, for not dealing with Mr. Brine's complaint. None of the parties had originally made argument on whether paragraph 41(1)(d) was properly triggered in this case. I asked for post-hearing submissions as to whether this section was properly invoked in the circumstances.
[67] The reason the Commission gave for not dealing with the complaint was because of the settlement agreement which states Mr. Brine is satisfied Ports Canada has satisfied all of its obligations under the Canadian Human Rights Act.
[68] The Commission had before it Mr. Raymond's section 40/41 analysis which said this at paragraph 4:
| 4. ...Noting the complainant's argument that he was not in a position to make appropriate decisions, according to the medical evidence, the Adjudicator ruled on 02 June 1997 that the agreement was binding on both parties. |
[69] When deciding not to deal with a complaint pursuant to paragraph 41(1)(d) on grounds that the complaint is trivial, frivolous, vexatious or made in bad faith, in my view, the footing of the Commission must be legally and factually very solid and its reasons must be consistent with the purpose of the Act and its role as a screening body.
[70] I am not satisfied the Commission, in this case, had assembled the necessary elements to enable it to shut down this complaint at the very early stage it did. In saying this, I have in mind public policy which strives to give effect to settlement agreements between parties and the role of Parliament gave to the Commission of "weeding out" good cases from bad ones. The point which has to be kept in mind, in my view, is when should the triage take place: before or after an investigation. In this context, I note the Commission retains the ability to dismiss a case (rather than to refuse to deal with a complaint), after investigation, on grounds that the complaint is trivial, etc. This option is specifically preserved by subparagraph 44(3)(b)(ii) "that the complaint should be dismissed on any ground mentioned in paragraphs 41(1)(c) to (e).
[71] In my view, the Commission did not have a proper factual footing not to deal with Mr. Brine's complaint. An analysis of the reasons of Adjudicator Outhouse simply does not support the factual finding reached by Mr. Raymond that Adjudicator Outhouse based his decision on Mr. Brine's medical condition when upholding the validity of the settlement agreement and release. His decision was not on this basis. It was for other reasons. In Gill, supra, Reed J. set aside a Commission decision not to deal with a complaint under paragraph 41(1)(d) because the summary analysis contained a serious mischaracterization of an opinion. In my view, the Raymond analysis before the Commission when it made its decision in this case contained a similar flaw.
[72] In addition, in my view, the Commission's legal premise in deciding this case was also faulty. The Commission appeared to be of the view that the simple existence of a release which stated the complainant was satisfied the employer had met all of its Canadian Human Rights Act obligations was, in of itself, sufficient to refuse to deal with a complaint. In my opinion, this is not correct in law. In Robichaud et al. v. The Queen (1987), 40 D.L.R. (4th) 577 (S.C.C.), the Court considered issues springing from the complaint under the Act by an employee against her employer, the Department of National Defence, and her supervisor on the grounds that she had been sexually assaulted by her supervisor. Before the Supreme Court of Canada heard argument, a settlement agreement had been entered into between the parties. The existence of this settlement agreement was made known to the Court. La Forest J., on behalf of the Court, at page 586 of the reported case said:
| Finally, we were advised that a settlement has been reached with Mrs. Robichaud, but this may not provide a full corrective to the problem identified. [emphasis mine] |
[73] The matter was then reconsidered by a Review Tribunal in Bonnie Robichaud v. The Queen et al. (1990), 11 C.H.R.R. D/194. The Review Tribunal decided that it would not set aside the agreement on grounds of duress and issues of public policy. It said this at paragraph 19:
| 19. To a limited extent we agree. It is indeed a valid, binding and enforceable agreement. And we find the arguments advanced by Mrs. Robichaud suggesting the agreement was reached under conditions of duress, oppression, lack of adequate counsel, and undue pressure to be unconvincing. |
The Review Tribunal then examined the remedies available under the Act that serve a broader public purpose in terms of restitution to personal (private) indignities and those which serve the public interest by acting as a deterrent for employers as an educational vehicle cautioning employers with respect to matters such as poisoned work environment or the powers/vulnerability relationship existing between supervisors and the supervised. The Review Tribunal ruled that in order to fulfil its responsibilities under the Act, it must consider the terms of the agreement to ensure that an appropriate "full corrective" is achieved with respect to matters of public policy at issue.
[74] In my view, the Commission was obligated to assess and consider the circumstances under which the settlement and release were entered into between Mr. Brine and Ports Canada from the perspective of the Act, that is to determine whether, under the circumstances, sufficient evidence warranted requesting a Human Rights Tribunal to "inquire into the complaint" enabling that Tribunal, after hearing all of the evidence, to determine what scope to give, if any, to any of the remedies provided for in the Act. The record is clear that the Commission failed to conduct this required analysis. Some of those issues were touched upon in the Dunphy report but, as noted, that report was not before the members of the Commission when they made their decision.
[75] I conclude this case was not the type of case, plain and obvious, where paragraph 41(1)(d) could properly be invoked in fact or in law.
J. DISPOSITION
[76] For all of these reasons, this judicial review is allowed, with costs, the decision of the Commission refusing to deal with Mr. Brine's complaint is set aside and the matter is remitted to the Commission for reconsideration.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 20, 1999