Ottawa, Ontario, September 19, 2005
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
and
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This is an application for judicial review of a decision of the Canadian Human Rights Commission (the Commission) dated October 20, 2004, wherein it concluded that the Applicant was out of time to file a complaint and that the Commission lacked jurisdiction on certain matters raised in the complaint.
[2] The Applicant seeks the following:
(1) an order setting aside the decision of the Commission;
(2) an order that the Commission investigate the Applicant=s complaint of discrimination against the Codiac Royal Canadian Mounted Police (the RCMP) based on marital and family status;
(3) such further and other relief as counsel advises and this Court deems just.
2. Factual Background
[3] In 1998, the Applicant became an Auxiliary Member of the RCMP. She worked full-time as a provincial ambulance dispatcher until she became a Civilian Member of the force in March 2001. She was then hired as a dispatcher by the City of Moncton in cooperation with the RCMP and worked in the Operational Communications Centre of the RCMP=s Codiac, New Brunswick detachment. At the time of her termination, she was a member of a union, the City Hall Employees Association.
[4] The Applicant was subjected to security and personal suitability screening by the RCMP prior to, and during, the course of her employment.
[5] On December 19, 2001, the Applicant was dismissed based on the RCMP=s review of her security status which deemed her not suitable to work as a dispatcher. The RCMP had obtained new information which showed that the Applicant was not forthright about the nature of her relationship with her former common-law spouse who had been incarcerated since before 1998. She was also required to quit the Auxiliary program. On February 14, 2002, the Applicant wrote to Superintendent Woods requesting an appeal of this decision.
[6] The Applicant telephoned the Atlantic Regional Office of the Commission on March 14, 2002. The Commission subsequently sent her an Intake Questionnaire to be completed. The Applicant returned it on September 24, 2003, alleging that her termination amounted to discrimination on the grounds of family and marital status.
[7] On October 20, 2003, the Applicant was contacted by the Commission to discuss the timeliness of her complaint; the Commission wrote to the Applicant that same day to inform her that it found her reasons for delay insufficient to warrant the waiving of the one year limitation for filing a complaint. On October 23, 2003, the Applicant resubmitted her September 24, 2003, complaint asking the Commission to render a decision on timeliness, adding new allegations of discrimination and giving reasons for the delay in filing the complaint. The new complaint alleged numerous incidents of discrimination.
[8] The Applicant also enumerated the following reasons for delay in filing her complaint:
- she thought the time limit for filing a complaint was two years from the date of the last alleged discriminatory act;
- the Commission has raised the question of jurisdiction in her initial contact;
- she was encouraged to pursue alternate recourse by the Commission in March 2002 and has done so since her dismissal;
- she was hopeful that her complaint would be resolved through other recourse but realized in September 2003 that it would not be;
- she hoped to avoid filing this complaint because the respondent is responsible for granting the security clearance she needs to work in her profession (emergency services) and she is the sole provider for her family;
- issues around jurisdiction and her employment status were argued with the respondent and union throughout 2002 and 2003 and delayed the filing of a union grievance.
[9] The Commission designated a person to investigate the complaint pursuant to section 43 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act) and obtained a report.
[10] The Commission advised the Applicant by letter on June 9, 2004 that her complaint would not be dealt with because of its late filing. The Applicant requested reconsideration of this decision on June 27, 2004. She received the final and impugned decision on October 26, 2004.
3. Impugned Decision
[11] Upon reviewing the investigator's report and information adduced in the file, the Commission concluded that it would not deal with the Applicant=s complaint.
[12] The record which was before the Commission when it made its decision was composed of the following materials: complaint summary dated October 24, 2003, letter from the Applicant dated October 23, 2003, letter from the Applicant dated September 22, 2003, Intake Questionnaire dated September 24, 2003, letter from the Applicant to Supt. Woods dated February 14, 2002, investigator=s report, Applicant=s submissions in response to the investigator=s report, respondent=s submissions in response to the report.
[13] The investigator notes in her report that two of the Applicant=s allegations relate to incidents which occurred during the year prior to the filing of her complaint on October 24, 2003. These allegations read as follows:
(1) that on October 20, 2003, the respondent made discriminatory statements about the complainant that adversely affected her career prospects;
(2) that the details surrounding the complainant=s dismissal were inappropriately released to former colleagues of the complainant at the respondent=s Codiac office before October 18, 2003.
[14] The Commission decided that, pursuant to paragraph 41(1)(c) of the Act, these allegations were within time but outside the Commission=s jurisdiction.
[15] The investigator=s report also mentions that the remaining allegations relate to discrimination alleged to have occurred before October 24, 2002. These allegations read as follows:
(3) that the respondent dismissed the complainant on December 18, 2001 because of her family or marital status;
(4) that between February and December 2001, a supervisor working in the respondent=s Codiac OCC adversely affected the complainant=s employment prospects based on her family or marital status;
(5) that the respondent did not provide the complainant and City of Moncton with reasons for the complainant=s dismissal until January 17, 2002; and
(6) that the respondent continued to investigate the complainant after her dismissal and revoked her security status on or about March 6, 2002.
[16] The Commission decided, pursuant to paragraph 41(1)(e) of the Act, not to deal with these allegations since the Applicant failed to file the complaint within time or provide compelling reasons for the delay. The reasons put forth by the Applicant were judged insufficient to justify accepting to deal with the complaint.
4. Issues
[17] The Applicant does not take issue with the Commission=s determination that the first and second allegations were found to be outside its jurisdiction. Rather, she focuses her arguments on the Commission=s determination that her reasons for delay are insufficient to justify dealing with the complaint.
[18] Consequently, the relevant issue to be determined in the present case is the following: Whether the Commission erred in its determination that allegations 3 to 6 were out of time, pursuant to paragraph 41(1)(e) of the Act, and that the Applicant=s reasons for delay were insufficient to justify dealing with the complaint?
5. Analysis
A. Whether the Commission erred in its determination that allegations 3 to 6 were out of time, pursuant to paragraph 41(1)(e) of the Act, and that the Applicant=s reasons for delay were insufficient to justify dealing with the complaint?
[19] Paragraph 41(1)(e) of the Act provides:
| 41. Commission to deal with complaint (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.
|
41. Irrecevabilité (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 :
e) la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiquer dans les circonstances. |
[20] The impugned decision was made at the preliminary stage or screening stage of the inquiry. The Federal Court of Appeal in Canada Post Corp. v. Canada (Canadian Human Rights Commission), [1997] F.C.J. No. 578, (QL), aff=d [1999] F.C.J. No. 705(QL), held that the Commission should dismiss a complaint, at the preliminary stages of the determination made pursuant to subsection 41(1) of the Act, only in plain and obvious cases since such a decision will summarily end the matter.
[21] At the preliminary treatment of a complaint, neither the substance nor the merits of the case are examined. Rather, paragraph 41(1)(e) of the Act provides that the Commission must deal with the complaint unless it appears to the Commission that it is out of time. In the event where the Commission concludes that a complaint is out of time, it may still in the exercise of its discretion consider the complaint: Tse v. Federal Express Canada Ltd., 2005 FC 598.
[22] In reviewing such discretionary administrative decision, the courts have afforded considerable deference to the Commission and have not readily intervened. In Cape Breton Development Corp. v. Hynes (1999), 164 F.T.R. 32, the Federal Court expressed the test as follows at paragraph 15 of its decision:
It is well settled, as all parties agree, that decisions of the Commission under paragraph 41(e) are discretionary administrative decisions. 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.
[23] The jurisprudence has also established the standard of review applicable to a decision made under paragraph 41(1)(e) of the Act to be the patent unreasonableness decision: Price v. Concord Transportation Inc., 2003 FC 946; Zavery v. Canada (Human Resources Development), 2004 FC 929; Johnston v. Canada Mortgage and Housing Corp., 2004 FC 918; Tse, supra.
[24] The Applicant contends that she exceeded the delay for filing her complaint because she exhausted all grievance and review procedures. She also submits that the present circumstances are appropriate for the Commission to exercise its discretion and extend the statutory time period: Canada Post Corp. v. Barrette, [2000] 4 F.C. 145.
[25] The first question is to determine whether the complaint was made within the one year time limit prescribed by paragraph 41(1)(e) of the Act. It is not disputed that the Applicant first contacted the Commission concerning her intent to file a complaint on March 14, 2002, that she returned the Intake Questionnaire on September 24, 2003 and that the official complaint was received on October 24, 2003.
[26] In Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 at paragraph 28, the Federal Court of Appeal concluded that discharge from employment is an act that takes place, and is completed, at a specific point in time. The Federal Court of Appeal reiterated this view in Lever v. Canada(Human Rights Commission), [1988] F.C.J. No. 1062 (QL). In Johnston, supra, at paragraph 7, the Court held that the complainant had one year from the time of the dismissal to file a formal written complaint. The date when the complainant first contacts the Commission regarding a possible complaint does not stop the Aclock for the one-year time limit@.
Mr. Johnston also argues that the complaint should be assessed from the date that he first contacted the Commission in January 2001 about filing a complaint. This argument is without merit. The Commission must receive thousands of inquiries into possible complaints. It would be difficult and perhaps impossible for the Commission to track each of these calls. The Commission has wisely and fairly, in my view, interpreted its legislation to require that the clock for the one-year time limit runs to the date on which a written complaint is filed. There may be circumstances where the Commission may determine that the date against which it measures the time should be different; this is not such a case.
[27] In my view, the principle established in Johnston, supra, applies to the circumstances of the present case. The Applicant was dismissed on December 19, 2001. She had one year, from that date, to file an official, written, complaint with the Commission. She failed to do so; the official complaint was received by the Commission on October 24, 2003. The Commission did not err when it concluded that the complaint was time barred. The Commission, does, however, have jurisdiction to consider claims that have been filed beyond the one year time limitation. Notwithstanding this discretion, the Commission chose not to consider the Applicant=s claim. The sole remaining issue is to determine whether the Commission's decision not to consider the claim is patently unreasonable?
[28] The Applicant argues that the Commission failed to fully consider her reasons for delay and its decision should consequently be set aside: Canadian Broadcasting Corp. v. Paul, [2001] F.C.J. No. 542 (QL). The Applicant contends that she clearly explained to the Commission why she did not file the complaint within the year of the alleged event, that the delay will not prejudice the RCMP, and that the documentation and witnesses are readily available. She submits that her prior grievance with the City of Moncton was based on the same issue of discrimination as her eventual complaint to the Commission.
[29] The Respondent replies that the Commission reasonably determined that allegations 3 to 6 were out of time and that the Applicant=s reasons for delay were insufficient to warrant the further consideration of the complaint. The purpose of paragraph 41(1)(e) of the Act is to ensure that complaints are brought in a timely manner. The Respondent contends, in the circumstances, that it was open to the Commission to reject the complaint for failure to respect the time limitation.
[30] The applicant was required to establish to the Commission's satisfaction sufficient reasons for delay. There was evidence before the Commission with respect to the reasons for delay, namely letters from the Applicant and documents relating to the complaint. However, as the investigator's report shows, this evidence was considered. I reproduce the following excerpts from the said report:
The complainant was dismissed by the respondent on December 19, 2001 and contacted the Commission about her dismissal in time, on March 14, 2002. She did not contact the Commission again until September 24, 2003 and filed her complaint on October 24, 2003.
The complainant provided details of her attempts to address her concerns between December 21, 2001 and the filing of her complaint. She has provided evidence that the other avenues of redress were complicated and delayed by questions of status, standing and jurisdiction which were out of her control. She says that pursuing other redress was difficult because she was a single mother working full-time, studying and caring for three children and an ailing mother who has since died.
The complainant decided for personal reasons within her control not to submit the Intake Questionnaire mailed to her on March 19, 2002, or contact the Commission again until September 24, 2003. She pursued alternate recourse instead. When it became clear that the alternate recourse would not resolved her complaint she re-contacted the Commission.
The complainant believes that the adverse impact of the respondent=s alleged discrimination (revocation of her security status) on her and her family is serious enough to warrant the waiving of the one-year time limit. She states that she decided to exhaust all other recourse before filing a complaint against the respondent because it is in a position to affect her future employability in her field.
[31] The investigator and the Commission both concluded, upon the evidence, that the Applicant decided for personal reasons, within her control, not to submit the Intake Questionnaire mailed to her on March 19, 2002 or contact the Commission again until September 24, 2003. In the circumstances, it was not patently unreasonable for the Commission to have declined to accept the Applicant=s complaint.
[32] I accept the Respondent=s argument that the legislative language is clear: paragraph 41(2(e) provides the time limitation for filing a complaint to be one year from the date of the alleged incident of discrimination or such longer period as the Commission considers appropriate in the circumstances. What is appropriate in the circumstances is a discretionary decision of the Commission. In the circumstances of this case, I am satisfied that the Commission's discretion was exercised in good faith in accordance with the principles of natural justice and procedural fairness, and that no reliance has been placed on irrelevant considerations.
6. Conclusion
[33] I conclude, on the evidence, that it was not patently unreasonable for the Commission to refuse to hear the complaint on the basis that it was time barred. In my view, the Commission had regard to all the facts and allegations placed before it, including the Applicant's reasons for delay. There was sufficient evidence on which the Commission could conclude that further consideration of the matter by a tribunal was not warranted. It is not for a reviewing Court to re-weigh this evidence. The Commission did not err in exercising its discretion as it did.
[34] For the above reasons, I find that the intervention of this Court is not warranted. The application for judicial review will be dismissed with costs to the Respondent.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed with costs to the Respondent calculated in accordance with the middle of column III of Tariff B of the Federal Courts Rules, SOR/2004-283, s. 2.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2081-04
STYLE OF CAUSE: Tiffany Good v. Attorney General of Canada
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: July 12, 2005
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
SOLICITORS OF RECORD:
LeBlanc McGrath Blair Boyd FOR THE APPLICANT
Moncton, N.B.
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada