Date: 20041223
Docket: T-912-03
Citation: 2004 FC 1776
Ottawa, Ontario, December 23, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
LOWER ST. LAWRENCE PILOTS, LLP
Applicant
- and -
JEAN BOUCHARD and
THE ATTORNEY GENERAL OF CANADA
Respondents
- and -
THE CANADIAN HUMAN
RIGHTS COMMISSION
Intervener
Docket: T-913-03
BETWEEN:
LOWER ST. LAWRENCE PILOTS
Applicant
- and -
JEAN BOUCHARD and
THE ATTORNEY GENERAL OF CANADA
Respondents
- and -
THE CANADIAN HUMAN
RIGHTS COMMISSION
Intervener
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for judicial review of the decision of the Canadian Human Rights Commission (Commission), dated May 7, 2003, in which it held that it has jurisdiction to hear and determine the two complaints of the respondent Jean Bouchard (the respondent).
[2] Complaint 2002-0192 (complaint no. 1), against the Lower St. Lawrence Pilots, LLP, is the subject matter of an application for judicial review in docket T-912-03. Complaint 2001-1881 (complaint no. 2), against the Corporation of Lower St. Lawrence Pilots, is the subject matter of an application for judicial review in docket T-913-03. These two applications were heard on October 27, 2004, and, for the sake of convenience, are the subject matter of a single judgment.
[3] The Commission acted as intervener in the context of this judicial review.
FACTS
[4] The respondent has been working as a marine pilot on the St. Lawrence river since 1968. In this profession, he operates, inter alia, as a docking pilot, i.e. he is responsible for the tie-up and let-go of ships.
[5] The respondent is a member of the Corporation of the Lower St. Lawrence Pilots (Corporation) and a partner in a limited liability partnership, the Lower St. Lawrence Pilots, LLP (Partnership).
[6] On November 2, 2000, the Laurentian Pilotage Authority (Authority) renewed the respondent's docking pilot licence but indicated on it that the licence would terminate on September 23, 2002, the day of the respondent's sixtieth birthday.
[7] On December 10, 2001, the respondent filed with the Commission complaint no. 2, concerning the Corporation, and, on March 6, 2002, complaint no. 1 concerning the Partnership. These complaints were amended on September 26, 2002. The respondent challenged his discriminatory status under the internal rule that, once a pilot reaches the age of 60, he is no longer authorized to carry on the duties of a docking pilot in the port of Québec.
[8] The applicants objected to the complaints pursuant to paragraph 41(1)(c) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA), arguing that the Commission lacked jurisdiction to deal with these complaints.
[9] In its decision, dated May 7, 2003, the Commission adopted the conclusions of the investigator's report filed on February 24, 2003, and declared it had jurisdiction to deal with the complaints, considering them receivable under sections 5, 7, 9 and 10 of the CHRA.
CONTEXT
[10] Some contextual information is required to clarify the origin and role of the various entities involved in this case: the Authority, the Corporation and the Partnership, and to define to some degree the preliminary process for dealing with complaints under the CHRA.
Origin and role of the Authority, the Corporation and the Partnership
[11] Subsection 91(10) of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), reproduced in R.S.C. 1985, App. II, No. 5, gives the federal government authority over navigation and shipping. The Pilotage Act, R.S.C. 1985, c. P-14 (PA) was adopted pursuant to this authority. That Act created the pilotage authorities, the objects of which, as provided by section 18 of the PA, are to "establish, operate, maintain and administer in the interests of safety an efficient pilotage service" within the regions identified by the schedule to the Act. It is also the issuing authority for licences: sections 22 to 32 of the PA.
[12] As defined by the PA schedule, the Laurentian Pilotage Authority is the one that is involved in this case.
[13] Although licenced pilots may be employed by the Pilotage Authority under subsection 15(1) of the PA, subsection 15(2) of that Act provides as well that where pilots elect not to become employees of the Authority, they form or are members or shareholders of a body corporate. To be able to retain the services of pilots, the Authority then signs service contracts with the body corporate.
| 15. (1) Subject to subsection (2), an Authority may employ such officers and employees, including licensed pilots and apprentice pilots, as are necessary for the proper conduct of the work of the Authority.
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15. (1) Sous réserve du paragraphe (2), une Administration peut employer le personnel, notamment les pilotes brevetés et les apprentis-pilotes, qu'elle estime nécessaire à l'exercice de ses activités.
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| 15. (2) Where a majority of licensed pilots within the region, or any part thereof, set out in respect of an Authority in the schedule who form or are members or shareholders of a body corporate elect not to become employees of the Authority, the Authority may contract with that body corporate for the services of licensed pilots and the training of apprentice pilots in the region or part thereof where the contract is to be effective, and the Authority shall not employ pilots or apprentice pilots in the region or that part thereof where such a contract is in effect.
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15. (2) Lorsque la majorité des pilotes brevetés de la région - ou d'une partie de la région - décrite à l'annexe au regard d'une Administration donnée forment une personne morale ou en sont membres ou actionnaires et choisissent de ne pas devenir membre du personnel de l'Administration, celle-ci peut conclure avec la personne morale un contrat de louage de services pour les services de pilotes brevetés et la formation d'apprentis-pilotes dans la région - ou partie de région - visée par le contrat; l'Administration ne peut alors engager de pilotes ou d'apprentis-pilotes dans la région - ou partie de région - en cause. |
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[14] In the case at bar, the body corporate that contracts for services with the Authority is the Corporation.
[15] The Corporation was formed, as a not-for-profit corporation, by letters patent dated May 17, 1960, which define the purposes of the Corporation as follows:
[translation]
(a) to promote the proper performance and progress of the profession of pilot in the interest of the members of the Corporation and of navigation in general within the Quebec City district and within any other district or area of the St. Lawrence river and the Great Lakes in which the members of the Corporation may be authorized to exercise their profession;
(b) to provide an effective pilots service to navigation;
(c) to govern the performance of pilotage by its members, within the limits allowed by law;
(d) to govern the education, training and apprenticeship of persons who wish to become pilots and members of the Corporation, within the limits allowed by law;
(e) to establish and govern the pooling, collection, administration, use and distribution among its members of all or any of the sums that may be owing or paid to each of them for his services as a pilot or apprentice pilot;
(f) to undertake and pursue a study of questions of common interest to the members and take any consequent measures that are not contrary to law;
(g) to represent its members in relations with governments, shipping companies, any public or private body and any person.
[16] The disputed by-law in this proceeding was adopted on April 9, 1976, at a meeting of the board of directors of the Corporation. It reads as follows:
[translation] It is also proposed, seconded and unanimously resolved to maintain the age limit for boatage at 60 years of age.
[17] On May 11, 1994, the signing of the partnership Agreement prolonged the existence of the Partnership. The latter's purposes, set out in article 6 of the Agreement, are as follows:
[translation]
(1) to organize the pilots of the Lower St. Lawrence in a partnership and enable them to carry on their profession therein;
(2) to provide the services of its member pilots for the purposes of performing the existing service contract between the Corporation and the Laurentian Pilotage Authority and piloting within district No. 3;
(3) to establish and govern the pooling, collection, administration, use and distribution among the member pilots, after deduction of the Corporation's share, of the sums owing or paid to each of the member pilots for piloting services;
(4) to undertake and pursue a study of questions of common interest to the partners and take any consequent measures that are not contrary to law;
(5) to represent its partners in relations with governments, shipping companies, any public or private body and any person.
[18] To fulfill the terms of the contractual undertakings that the Corporation has entered into with the Authority in the context of the service contracts, the Corporation is bound by a partnership arrangement with the Partnership under which the latter supplies it with the services of member pilots.
Process under the CHRA
[19] Section 3 of the CHRA lists the prohibited grounds of discrimination, including age. Section 4 stipulates that a discriminatory practice may be the subject of a complaint, which is filed under section 40. The various discriminatory practices are covered in sections 5 to 14.1. Section 41 comes into play at a stage prior to the processing of the complaint. It is simply a preliminary determination as to the admissibility of the complaint, so the complaint itself is not at that point examined on its merits.
IMPUGNED DECISIONS
[20] The Commission had the following documents to examine in making its decisions regarding the admissibility of the two complaints: letters patent of the Corporation; original and amended complaint forms; letters from the applicants expressing their desire not to participate in mediation; letter from the applicants to the investigator stating their position and sending the service contract with the Authority and the partnership contract; and letter from the applicants in reply to the investigator's report.
[21] The Commission adopted the conclusions drawn in the investigator's report concerning the admissibility of the complaints and found that they were admissible under sections 5, 7, 9 and 10 of the CHRA.
Section 5 of the CHRA: Denial of good, service, facility or accommodation
[22] First, the Commission asks itself whether section 5 of the CHRA might apply in this case as a basis for declaring admissible the complaint filed by the respondent. Section 5 provides:
| 5. It is a discriminatory practice in the provision of goods, services, facilities or accomodation customarily available to the general public |
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5. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d'installations ou de moyens d'hébergement destinés au public : |
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| (a) to deny, or to deny access to, any such good, facility or accomodation to any individual, or |
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a) d'en priver un individu; |
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| (b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination. |
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b) de le défavoriser à l'occasion de leur fourniture. |
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[23] In order to determine whether a service is available within the meaning of this provision, the Commission found in the cases University of British Columbia v. Berg, [1993] 2 S.C.R. 353 and Canada (Attorney General) v. Rosin (C.A.), [1991] F.C. 391, that the notion of "services to the general public" means that each service has its own public and that once that public is defined, it is prohibited to establish distinctions within that public.
[24] The Commission finds that in this case both the Partnership and the Corporation provide a service to the respondent. The evidence sustains the conclusion that the Partnership groups the pilots in a partnership to enable them to carry on their profession and that it has a partnership contract with the Corporation under which the Corporation refers the pilots to the Authority under a service contract. The Commission further concludes that the Partnership handles questions of common interest to pilots, represents them in relation to public or private bodies and governs the distribution of funds deriving from the exercise of the profession.
[25] In regard to the Corporation, the Commission finds that the Corporation's stated purposes indicate that it provides services to its members and that the pilots are the target public.
Section 7 of the CHRA: Employment
[26] Secondly, the Commission considers whether complaint no. 1 could be declared admissible under section 7 of the CHRA, which reads as follows:
| 7. It is discriminatory practice, directly or indirectly, |
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7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects : |
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| (a) to refuse to employ or continue to employ any individual, or |
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a) de refuser d'employer ou de continuer d'employer un individu; |
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| (b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discretion. |
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b) de le défavoriser en cours d'emploi. |
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[27] Examining the file, the Commission decides that there is an employer-employee relationship, broadly speaking, between the respondent and the Partnership because the latter uses the services of its employees, the pilots, and exercises some control and influence over them in the exercise of their profession. In return, the pilots provide their services exclusively to the Partnership.
[28] The Commission cites in support the case law that in its view establishes a very liberal approach in determining what constitutes an employer: Canadian Pacific Ltd. v. Canada (Human Rights Commission), [1991] 1 F.C. 571; Cormier v. Alberta (Human Rights Commission), [1984] 33 Alta L.R. (2d) 359; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Pointe Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015. It adds that this relationship may be established without the payment of compensation; an employment relationship exists from the time when a person's services are "used": Rosin, supra.
[29] The Commission concludes, on the basis of these considerations, that in this case the respondent is an employee of the Partnership within the broad meaning of that word. It concludes as well that there is an employment relationship between the respondent and the Corporation in that the latter "uses" the services of the pilots and controls and influences the exercise of that profession.
Section 9 of the CHRA: Employee organizations
[30] The Commission then considers the admissibility of complaint no. 1 under section 9 of the CHRA, which provides:
| 9. (1) It is a discriminatory practice for an employee organization on a prohibited ground of discrimination |
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9. (1) Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, pour une organisation syndicale : |
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| (a) to exclude an individual from full membership in the organization; |
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a) d'empêcher l'adhésion pleine et entière d'un individu; |
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| (b) to expel or suspend a member of the organization; or |
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| b) d'expulser ou de suspendre un adhérent; (c) to limit, segregate, classify or otherwise act in relation to an individual in a way that would deprive the individual of employment opportunities, or limit employment opportunities or otherwise adversely affect the status of the individual, where the individual is a member of the organization or where any of the obligations of the organization pursuant to a collective agreement related to the individual. |
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c) d'établir, à l'endroit d'un adhérent ou d'un individu à l'égard de qui elle a des obligations aux termes d'une convention collective, que celui-ci fasse ou non partie de l'organisation, des restrictions, des différences ou des catégories ou de prendre toutes autres mesures susceptibles soit de le priver de ses chances d'emploi ou d'avancement, soit de limiter ses chances d'emploi ou d'avancement, ou, d'une façon générale, de nuire à sa situation. |
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| (2) Notwithstanding subsection (1), it is not a discriminatory practice for an employee organization to exclude, expel or suspend an individual from membership in the organization because that individual has reached the normal age of retirement for individuals working in positions similar to the position of that individual. |
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(2) Ne constitue pas un acte discriminatoire au sens du paragraphe (1) le fait pour une organisation syndicale d'empêcher une adhésion ou d'expulser ou de suspendre un adhérent en appliquant la règle d'âge normal de la retraite en vigueur pour le genre de poste occupé par l'individu concerné. |
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[31] The Commission notes the definition of "employee organization" in section 25 of the CHRA.
| 25. In this Act,
"employee organization" includes a trade union or other organization of employees or a local, for the purposes of which include the negotiation of terms and conditions of employment on behalf of employees. |
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25. Les définitions qui suivent s'appliquent à la présente loi.
« organisation syndicale » Syndicat ou autre groupement d'employés, y compris ses sections locales, chargé notamment de négocier les conditions de travail des employés au nom de ceux-ci. |
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[32] It appears, the Commission says, that the tests laid down in Canadian Assn. of Trades and Technicians v. Canada (Treasury Board) (C.A.), [1992] 2 C.F. 533, constitutes a guide for determining whether an organization qualifies as an employee organization. The organization must be: (1) an organization of employees; (2) formed for labour relations purposes; and (3) a viable entity for collective bargaining purposes.
[33] The Commission cites International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster (T.D.), [2002] 2 F.C. 430, in support of the proposition that a person may lodge a complaint against the union to which he or she belongs. It concludes that the respondent could do likewise in this case. The Commission notes, however, that it is unable, at this stage, to rule definitively on the exception created by subsection 9(2) of the CHRA.
[34] The Commission says that in its opinion the Partnership could be defined as an employee organization, insofar as it assembles the pilots in a partnership, guarantees their representation and handles questions that are of common interest to them. Moreover, it says, the Corporation can be considered an employee organization given the fact that it is the pilots' agent in negotiating service contracts with the Authority.
Section 10 of the CHRA: Discriminatory policy or practice
[35] Lastly, the Commission considers the application of section 10 of the CHRA to this case. Section 10, which deals with discriminatory policies or practices, is worded:
| 10. It is a discriminatory practice for an employer, employee organization or employer organization |
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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 : |
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| (a) to establish or pursue a policy or practice, or |
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| a) de fixer ou d'appliquer les lignes de conduite; (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or perspective employment,
that deprives or tends to deprive an individual or class of individuals or any employment opportunities on a prohibited ground of discrimination. |
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b) de conclure des ententes touchant le recrutement, les mises en rapport, l'engagement, les promotions, la formation, l'apprentissage, les mutations ou tout autre aspect d'un emploi présent ou éventuel. |
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[36] On that basis, the Commission concludes, in these words:
[translation] Since section 10 applies in employment situations, the same reasoning as for section 7 applies here. Section 10 refers to the fact that the third party went along with the Authority and the Corporation of the Lower St. Lawrence Pilots in systematically rejecting anyone over the age of 60.
ISSUE
[37] The issue is appropriately defined as follows: Did the Commission err in concluding that it had jurisdiction to deal with the complaints?
ANALYSIS
[38] First of all, it is necessary to situate the decision that is to be reviewed in this case in its context. It was made, at a preliminary stage, in the exercise of a substantial discretion enjoyed by the Commission under subsection 41(1) of the CHRA.
| 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 |
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| 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 : (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance of review procedures otherwise reasonably available; |
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a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; |
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| (b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act; |
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b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale; |
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| (c) the complaint is beyond the jurisdiction of the Commission; |
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c) la plainte n'est pas de sa compétence; |
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| (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or |
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d) la plainte est frivole, vexatoire ou entachée de mauvaise foi; |
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| (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. |
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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 indiqué dans les circonstances. |
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[39] I accept the intervener's argument that, according to a decision of the Federal Court of Appeal, the Commission ought to dismiss a complaint, at the preliminary stage of determination of jurisdiction under subsection 41(1) of the CHRA, only in the most obvious cases: Canada Post Corp. v. Canada (Canadian Human Rights Commission), [1997] F.C.J. No. 578 (QL), upheld by [1999] F.C.J. No. 705 (QL).
[40] At this preliminary stage, neither the substance nor the merits of the case are examined. The Commission must instead deal with the complaint unless it thinks the complaint does not fall within its jurisdiction as provided by paragraph 41(1)(c). In my opinion, the analogy made by Lemieux J. in Brine v. Canada Ports Corporation, [1999] F.C.J. No. 1439 (QL), between a review under subsection 41(1) of the CHRA and a preliminary inquiry, is fair.
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 . . . (paragraph 39)
[41] It is also worth noting that, in the context of a preliminary review such as the one that interests us in this case, the Court must largely defer to the Commission's exercise of its discretion. This is clear from the reasons for judgment of Décary J.A. in Holmes v. Canada (Attorney General), [1999] F.C.J. No. 598, who repeated his comments in Bell Canada v. CEPU [1999] 1 F.C. 113:
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. . . . it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission. (Paragraph 38) [Emphasis added]
[42] It is true that the Court must apply the correctness standard of review when a final decision of the Commission involves an issue of jurisdiction: Slattery v. Canadian Human Rights Commission, [1994] F.C.J. No. 1017 (QL); Canada (Attorney General) v. Bouvier, [1996] F.C.J. No. 623 (QL). However, when a question of jurisdiction is at issue at the preliminary stage of the determination made under subsection 41(1) of the CHRA, the Court must intervene to set aside the decision only where it is "clear and beyond doubt that the Tribunal is without jurisdiction to deal with the matter before it": Attorney General of Canada v. Cumming, [1980] 2 F.C. 122; Canada Post Corp., supra. In my opinion, this is the test that it is necessary to apply in the case at bar and, to that end, I adopt the remarks by Rothstein J. in Canada Post Corp.:
A decision by the Commission under section 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 section 41, the Commission should, with dispatch, proceed to deal with it. (paragraph 3) [Emphasis added]
[43] For these reasons, I will not perform as extensive an analysis as the applicants ask me to do in their submissions. Indeed, reviewing the evidence and cases to find out whether the applicants could be considered providers of services under section 5, employers under sections 7 and 10, and employee organizations under section 9 of the CHRA would be tantamount to ruling on the merits of the case, which I will not do. It would be inappropriate to proceed in that way, first, because this is an application for judicial review, and second, because the Commission's decision that is urged for review does not deal with the merits of the case but instead is a determination of a preliminary nature.
CONCLUSION
[44] Everything considered, I am of the opinion that in this case, at this preliminary stage of review of the case, it was not clear and beyond doubt that the Tribunal was without jurisdiction to deal with the matter before it. Accordingly, I think it has not erred in declaring the complaints admissible. That is why I dismiss the applications for judicial review.
ORDER
THE COURT ORDERS:
1. The applications for judicial review are dismissed with costs.
"Edmond P. Blanchard"
Judge
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-912-93 and T-913-03
STYLE: Lower St. Lawrence Pilots v. Jean Bouchard, The Attorney General of Canada
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: October 27, 2004
REASONS FOR ORDER: Mr. Justice Blanchard
DATED: December 23, 2004
APPEARANCES:
Pierre Cimon FOR THE APPLICANT
Yann Duguay FOR THE RESPONDENT BOUCHARD
Johanne Boudreau FOR THE RESPONDENT THE QUEEN
Philippe Dufresne FOR THE INTERVENER
SOLICITORS OF RECORD:
Pierre Cimon FOR THE APPLICANT
Ogilvy Renault
520-500 Grande Allée Est
Québec, Quebec G1R 2J7
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
H2Z 1X4
FEDERAL COURT
Docket: T-912-03
T-913-03
BETWEEN:
LOWER ST. LAWRENCE PILOTS
Applicant
- and -
JEAN BOUCHARD
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
AND ORDER