Ottawa, Ontario, this 1st day of June, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
- and-
BYERS TRANSPORTATION SYSTEM INC.
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review in respect of a decision of the Human Rights Commission (the "Commission") dated April 27, 2004, wherein Michelle Doucet's (the "applicant") complaint against Byers Transportation System Inc. (the "respondent") was dismissed.
[2] The applicant seeks:
1. An order quashing the April 27, 2004 decision of the Commission and directing that the applicant's complaint and claim for compensation for lost wages, lost maternity benefits and legal fees be heard by a Human Rights Tribunal; and
2. Costs of this application.
Background
[3] The applicant was hired in November 2000 as a part-time image clerk by the respondent, Byers. She went on maternity leave from May 24, 2001 to November 19, 2001. The applicant alleged that she subsequently suffered some personal difficulties including a miscarriage and in February 2002, she was involved in a car accident.
[4] On April 1, 2002, the applicant approached her supervisor, Dawn Brandstrom, ("Ms. Brandstrom") and requested time off to find a replacement babysitter for her daughter. Time off was granted.
[5] The respondent alleged that the applicant was expected to be back at work on April 5, 2002 but the applicant alleged that Ms. Brandstrom agreed to give her the week off (including the 5th). The applicant alleged that on April 6, 2002, her daughter became ill and she (the applicant) was advised by the doctor that she needed to stay home for a week, so she left a message for Ms. Brandstrom, then spoke with her on April 8, 2002.
[6] The applicant alleged that Ms. Brandstrom advised the applicant that she could have the extra week off, but was required to be at work on April 15, 2002. Further, the applicant was suffering from back problems and overwhelmed by stress and her doctor advised her to take a leave of absence from work.
[7] The applicant alleged that when she returned to work on April 15, 2002, she was given a reprimand for failure to report to work during the week of April 8 to12, 2002, and was placed on probation. The applicant spoke with Ms. Brandstrom and advised her of what was occurring in her life, and advised that she would like to take a medical leave of absence.
[8] The applicant alleged she was given the option of either resigning or providing medical information to have her medical leave approved. As the applicant was scheduled to see her doctor on April 18, 2002, she advised Ms. Brandstrom that a note would be obtained from the doctor at that time.
[9] The applicant obtained a note from her doctor on April 18, 2002 which stated that she was unable to attend work from April 15, 2002 until further notice. The applicant's mother in-law gave the note to Ms. Brandstrom on April 19, 2002. Later that day, the applicant received a couriered letter of termination dated April 18, 2002 stating that the applicant had abandoned her position.
[10] The respondent alleged, however, that at the time the decision was made to terminate the applicant's employment for abandonment of her position, (i) the applicant had been absent from work without leave since April 5, 2002; (ii) the respondent had asked that she provide a request for leave and a doctor's letter confirming the need for the absence, as required by the collective agreement and employee's handbook on at least six occasions; (iii) the applicant promised that she would provide the requested information on at least five occasions but did not do so; (iv) the applicant advised that she had faxed information on two occasions, although no such documents were ever received; and (v) the applicant provided a back-dated note from the doctor, a hospital bracelet for her daughter which contained no information relevant to her daughter's alleged illness in April 2002, and two undated medical requisition forms which again, provided no supporting information regarding the applicant's previous absences.
[11] The applicant filed a complaint with the Commission on January 2, 2003, alleging that the respondent discriminated against her in respect of her employment on the grounds of family status and disability by failing to accommodate her and by terminating her employment contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c.H-6 (the"Act").
[12] A mediation was held with respect to the complaint on March 11, 2003, but it was unsuccessful.
[13] The investigation report (the "Report") dated January 22, 2004 recommended that pursuant to paragraph 44(3)(a) of the Act, the Commission request the appointment of a Human Rights Tribunal to inquire into the complaint because "the evidence gathered during the investigation shows that the respondent failed to accommodate the complainant".
[14] The parties were provided with a copy of the Report and afforded the opportunity to make submissions in response to the Report. The Commission rendered it's decision dismissing the applicant's complaint, and advised the parties by letter dated April 27, 2004.
[15] This is the judicial review of that decision.
Commission's Decision
[16] By letter dated April 27, 2004, the Commission issued its decision wherein it dismissed the applicant's complaint. The letter states, in part:
. . .
Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint because:
the evidence does not support the allegation that the respondent failed to accommodate the complainant.
. . .
The Commission realizes that this is not the outcome you were hoping for. I can assure you, however, that the Commissioners examined your complaint very carefully before arriving at this decision.
Issues
[17] The issues, as framed by the applicant are:
1. Was the Commission's decision reasonable when it concluded that the evidence did not support the allegation that the respondent failed to accommodate the applicant with her employment requests relating to her family status and disability and thereafter refused to submit the matter to a tribunal?
2. Did the Commission fail to observe the principles of fundamental justice and procedural fairness by not giving sufficient reasons for the change from the initial investigator's recommendation for the appointment of a Human Rights Tribunal to the Commission's final decision to dismiss the complaint on the basis that "the evidence does not support the allegation that the respondent failed to accommodate the complainant"?
3. Did the Commission breach its statutory mandate and the principles of natural justice and procedural fairness in failing to have regard to all the evidence and circumstances of the applicant's complaint, the inconsistencies in the respondent's submissions and the Commission's failure to even consider the applicant's final submissions of March 31, 2004?
[18] The issues, as framed by the respondent are:
1. What is the appropriate standard of review in examining the Commission's decision that the evidence did not support the allegation that the respondent failed to accommodate the applicant with her employment requests relating to her family status and disability?
2. Was the Commission's decision:
(a) patently unreasonable, or alternatively,
(b) reasonable when it concluded that the evidence did not support the allegation that the respondent failed to accommodate the applicant with her employment requests relating to her family status and disability?
3. Did the Commission fail to observe the principles of fundamental justice and procedural fairness by not giving sufficient reasons for not adopting the investigator's recommendation to appoint a Human Rights Tribunal?
4. Did the Commission breach its statutory mandate and the principles of natural justice and procedural fairness in failing to have regard to all the evidence and circumstances of the applicant's complaint, the inconsistencies in the respondent's submissions and the failure to consider the applicant's final submissions of March 30, 2004?
Applicant's Submissions
[19] Standard of Review
The applicant submitted that the applicable standard of review of the Commission's discretionary decision to not refer a complaint to a Human Rights Tribunal is reasonableness simpliciter (see Cormier v. Canada (Canadian Human Rights Commission), [1999] F.C.J. No.543 (T.D.)).
[20] Issue 1
The applicant submitted that there were many inconsistencies in the respondent's submissions to the Commission and therefore the evidence of the applicant should have been preferred. Examples cited by the applicant included issues surrounding whether in fact a union representative was in attendance at the times alleged by the respondent, and the respondent's failure to provide the applicant with documentation outlining the procedures and policies that the respondent claimed the applicant had breached.
[21] The applicant submitted that the respondent clearly discriminated against her by failing to accommodate her family status and her disability and thus, the Commission's decision was unreasonable and should be overturned.
[22] Issue 2
The applicant submitted that the Commission erred in reversing the investigator's recommendation without providing any explanation of what specific allegations were accepted by the Commission.
[23] The applicant submitted that in certain circumstances where the decision in question has important significance for the individual, as was the case here, reasons for the decision should be provided (see Gardner v. Canada (Attorney General), [2004] F.C.J. No. 616).
[24] The applicant further submitted that in keeping with the Court's reasons in Gardner, supra, two written requests for reasons were made to the Commission on May 21, 2004 and June 16, 2004, but no written reasons were provided. The applicant submitted that the Commission therefore breached the duty of fairness by failing to provide sufficient reasons.
[25] Issue 3
The applicant submitted that the Rule 318 Certificate accompanying the certified record submitted to the Court which indicated that the applicant's final submissions dated March 30, 2004 and faxed March 31, 2004 were provided to the Commissioners prior to rendering their decision. However, the document entitled "Chronology", indicated that the matter was sent to the Commission's Meetings Unit on March 25, 2004, and the applicant further contended that she was advised "by an official of the Commission" that it was unlikely that her latest submissions were ever reviewed prior to the April 27, 2004 decision.
[26] The applicant submitted that the final submissions appear therefore to not have been reviewed by the Commission. The Commission therefore failed to have regard to all the evidence and committed a reviewable error.
Respondent's Submissions
[27] Standard of Review
The respondent submitted that the appropriate standard of review in considering a discretionary decision of the Commission is patent unreasonableness (see McConnell v. Canada (Canadian Human Rights Commission), [2004] F.C.J. No. 1005 and Price v. Concord Transportation Inc., [2003] F.C.J. No. 1202 (T.D.)). The respondent submitted that in the alternative, the appropriate standard of review is reasonableness simpliciter (see Lindo v. Royal Bank of Canada, [2000] F.C.J. No. 1101 (T.D.)).
[28] Issue 1
The respondent submitted that the applicant's submission that the applicant's evidence should be preferred due to alleged inconsistencies in the respondent's submissions to the Commission, amounts to a request for an adjudicative decision from the Commission, which is not the appropriate role of the Commission (see Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854).
[29] The respondent submitted that there was sufficient evidence before the Commission to enable it to conclude that the respondent had accommodated the applicant in respect of both her family status and disability. For example, the respondent had granted the applicant's first request for time off to locate a new babysitter for her child. Notwithstanding the applicant's failure to both return to work and follow the steps she was repeatedly advised were required to have a leave of absence granted, the respondent continued to permit her absence on unauthorized leave while requesting the required information be provided by the applicant.
[30] The respondent further submitted that an employee who requires accommodation in respect of a prohibited ground in the Act is required to provide some evidence to support the requested need for accommodation. At no time did the applicant provide the required documentation to support a leave of absence on the various grounds she claimed.
[31] The respondent submitted that all of the evidence, including a letter from the union representative herself, surrounding the union representative's alleged presence or absence from the meetings was before the Commission. Evidence which clearly suggested that the respondent repeatedly articulated the requirements of the procedures for requesting a leave of absence and providing the supporting documentation for such a leave request. Accordingly, an assessment of the evidence demonstrated that there was more than sufficient evidence upon which the Commission could base its decision.
[32] Issue 2
The respondent submitted that in this case, reasons were provided by the Commission and those reasons should be found to be sufficient in the circumstances. The respondent submitted that in this case, similar to the Court's finding in Maclean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (T.D.), the reasons are brief and to the point but address the central issue. In this case, that issue is whether the respondent did or did not accommodate the applicant.
[33] Similarly, the Commission in Maclean, supra, concluded that the practice complained of was not discriminatory. The Commission did not go further to delineate the specific evidence that led it to that conclusion. Rather, the Court concluded it was not required to do so. Other Courts have also found that brief reasons provided by a Human Rights Commission were sufficient to demonstrate that the Commission had fulfilled its mandate (see also Lee v. BC Hydro, [2004] B.C.C.A. 457). In the case at bar, the Commission's decision advised the applicant of the basis upon which the complaint had been dismissed. The Commission was not required to itemize the evidence upon which it relied in arriving at that conclusion.
[34] The respondent submitted that in the alternative, there was neither a statutory nor a common law requirement for the Commission to provide reasons for its decisions.
[35] The respondent submitted that the facts of this case are more akin to Kallio v. Canadian Airlines International Ltd., [1996] F.C.J. No. 725 (T.D.) than Gardner, supra, as referred to by the applicant. In Kallio, supra, the Court found that there was no denial of natural justice because there was no evidence that the respondent had submitted any new materials upon which the Commission based its decision, so there was no obligation to provide reasons. The respondent submitted that in keeping with the Court's reasoning in Kallio supra, this is not one of those extremely rare cases in which reasons or more sufficient reasons should have been provided.
[36] Issue 3
The respondent submitted that the evidence showed that there were no inconsistencies in the submission to the Commission, as alleged by the applicant. In the alternative, if there were any inconsistencies, it was the Commission's role to assess the totality of the evidence and determine whether the complaint warranted a further inquiry at the Tribunal level (see Slattery v. Canada (Human Rights Commission, [1994] 2 F.C. 574 (T.D.), affirmed [1996] F.C.J. No. 385 (F.C.A.)).
[37] The respondent further submitted that the evidence demonstrated that the applicant's final submission was included in the material that went before the Commission as it is part of the certified record.
[38] In the alternative, the applicant had missed the March 18, 2004 deadline for submissions by twelve days. Accordingly, if the Commission had not had an opportunity to review the applicant's submissions, it would have resulted purely from her own inaction.
[39] In the further alternative, the respondent submitted that the submissions did not contain any new material facts and accordingly, any failure to review the submissions did not result in a breach of procedural fairness. All of the issues discussed by the applicant in the March 30, 2004 submissions had been previously discussed in other submissions and were merely re-argued in the March 30, 2004 submissions.
[40] The respondent requests an order dismissing the application and for costs.
Relevant Statutory Provisions
[41] Sections 3, 7 and 44 of the Canadian Human Rights Act, supra, state in part:
| 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,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
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
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
(3) On receipt of a report referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
(4) After receipt of a report referred to in subsection (1), the Commission (a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and
(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3). |
|
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:
a) de refuser d'employer ou de continuer d'employer un individu;
b) de le défavoriser en cours d'emploi.
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:
a) que le plaignant devrait épuiser les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts;
b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale.
(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission:
a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue :
(i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié,
(ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
b) rejette la plainte, si elle est convaincue:
(i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié,
(ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e).
(4) Après réception du rapport, la Commission:
a) informe par écrit les parties à la plainte de la décision qu'elle a prise en vertu des paragraphes (2) ou (3);
b) peut informer toute autre personne, de la manière qu'elle juge indiquée, de la décision qu'elle a prise en vertu des paragraphes (2) ou (3). |
Analysis and Decision
[42] I have previously decided that the standard of review to be applied when reviewing the Commission's decision to dismiss a complaint is the standard of reasonableness simpliciter (see MacLean, supra). On questions of procedural fairness or the duty of fairness, including the provision or sufficiency of reasons, the issue of the applicable standard of review does not apply.
[43] I propose to first deal with Issue 2.
[44] The Federal Court of Appeal commented on challenging administrative decision-makers in Marine Atlantic Inc. v. Canadian Merchant Service Guild, [2000] F.C.J. No. 1217 at paragraphs 5, 6 and 7:
In Liang v. The Minister of Citizenship and Immigration, [1999] F.C.J. No. 1301, Evans J. (as he then was) stated at paragraph 31:
However, in my opinion, the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.
We agree with Evans J. before seeking judicial review of a tribunal order on the grounds of failure to provide reasons, there is an obligation on parties to request reasons from the tribunal. If the tribunal refuses or provides inadequate reasons, resort to the Court may be appropriate. However, it would unduly complicate the administration of justice if parties could resort to the Court to seek to quash orders of tribunals on the grounds of failure to provide reasons without first requesting them from the tribunal.
A request to the Board may be met with reasons or alternatively, an explanation why reasons are not, in the view of the Board, required in the circumstances. We see no prejudice to a party before a tribunal having to request reasons before resorting to judicial review in the Court.
We should add that while a request to the tribunal for reasons is the usual requirement, there may be circumstances in which the obligation of the tribunal to provide reasons is so plain and obvious, that upon no reasons being provided, recourse to the Court without a request for reasons from the tribunal may be appropriate. Perhaps there may be circumstances in which a party for some reason cannot request reasons from the Board. Such situations, we think, would be exceedingly unusual.
[45] In the present case, the applicant asked for substantive reasons from the Commission by letters dated May 21, 2004 and June 16, 2004. No reply has been received to either letter. The applicant has met the requirement for requesting reasons.
[46] The respondent submitted that the letter from the Commission dated April 27, 2004 dismissing the applicant's complaint contained the reasons for its decision and the reasons were sufficient. The applicant submitted that the letter does not contain sufficient reasons or that the Commission failed to provide substantive reasons.
[47] In the present case, the Commission's decision was contrary to the recommendations of the investigator who recommended that a Human Rights Tribunal be appointed to inquire into the complaint.
[48] In Gardner, supra, Gibson J. stated at paragraphs 32, 33 and 34:
Further, the Applicant urged that, against the quotation from Marine Atlantic Inc., the circumstances of this matter were such as to disclose that an obligation on the part of the Commission to provide more substantive reasons than it did is so plain and obvious that more substantive reasons should have been provided even if I were to find there not to have been, on the facts of this matter, a timely request for more adequate reasons than those provided. The Applicant suggested that, once again against the quoted words from Marine Atlantic Inc., this is one of the "exceedingly unusual" situations where more adequate reasons should have been provided.
The Court has great sympathy for the position advanced by the Applicant. The Court is satisfied that the "reasons" provided by the Commission to the Applicant were hopelessly inadequate. In the result, she was left, without the aid of counsel, to attempt to extract from the tribunal record, as best she could, a rational explanation as to why the Commission chose to dismiss her complaints rather than to refer the complaints to conciliation as the Investigator had recommended to the Commission in her succinct but reasonably comprehensive Report. Any explanation that might be extracted from the tribunal record would be pure conjecture.
In the result, there existed and continues to exist on the face of the decision letter under review, quoted at length above, a question that cries out to be answered: why? It is supported by a cogent expression of concern that remains unreplied to.
[49] In Gardner, supra, the complaints were dismissed because:
. . . having regard to all of the circumstances of the complaints, no further inquiry is warranted.
[50] In the present case, the applicant's complaint was dismissed because:
. . . the evidence does not support the allegation that the respondent failed to accommodate the complainant.
[51] The respondent urged upon me, the case of MacLean, supra, where I ruled the reasons to be sufficient. In MacLean, supra, the complaint was dismissed because:
. . . the differentiation was justifiable in the circumstances. It was not a discriminatory practice for the respondent to provide different categories of benefits to those employees who were more likely to be affected than others.
[52] I do not agree that the Commission's reasons in this case are the same as in MacLean, supra. The Commission's reasons in MacLean, supra, tell the applicant why it was not discriminatory treatment to provide different categories of benefits to different employees. In the present case, the decision merely states the evidence does not support the allegation of the failure to accommodate the applicant.
[53] As Gibson J. stated in Gardner, supra, a case where the tribunal went against the investigator's recommendation to appoint a tribunal - why did the Commission go against the investigator's recommendation? The same can be asked in the present case - why did the Commission go against the investigator's recommendation?
[54] As I stated in MacLean, supra, at paragraph 47:
The Commission's reasons in this case are brief, but do tell the applicant why the Commission decided to dismiss his complaint. The Commission clearly stated it was not discriminatory to provide different categories of benefits for those who are more likely to be affected than others by the closure of the Marine Atlantic ferry service on the Borden - Cape Tormentine run. I am of the opinion that the reasons provided by the Commission were sufficient.
[55] In the present case, the applicant can only guess as to why the Commission went against the investigator's recommendation that a tribunal be appointed. I would add that the Commission need not follow the investigator's recommendation, but at a minimum, it should say why it came to a different conclusion. The reasons need not be extensive, but they should let the applicant know "why", as did the Commission's reasons in MacLean, supra.
[56] Accordingly, I am of the view that the reasons given by the Commission in the present case are not sufficient and therefore, the application for judicial review is allowed, the decision of the Commission is set aside and the matter referred to a different panel of the Commission for reconsideration.
[57] I need not deal with the other issues raised by the applicant.
[58] The applicant shall have her costs of the application.
ORDER
[59] IT IS ORDERED that:
1. The application for judicial review is allowed, the decision of the Commission is set aside and the matter is referred to a different panel of the Commission for reconsideration.
2, The applicant shall have her costs of the application.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1035-04
STYLE OF CAUSE: MICHELLE DOUCET
and
BYERS TRANSPORTION SYSTEM INC.
REASONS FORORDER AND ORDER OF : O' KEEFE J
APPEARANCES:
MS. TERRYL ROSTAD FOR APPLICANT
MS. JOYCE MITCHELL FOR RESPONDENT
SOLICITORS OF RECORD:
Odishaw & Odishaw FOR APPLICANT
2200 Sun Life Place
10123 99 Street
Edmonton, AB T5H 1T8
Fasken Martineau DuMoulin LLP FOR RESPONDENT
3400 First Canadian Centre
350 7th Avenue SW
Calgary, AB T2P 3N9