Docket: T-551-19
Citation: 2020 FC 1090
Ottawa, Ontario, November 27, 2020
PRESENT: The Honourable Mr. Justice Mosley
| BETWEEN:
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| MICHÈLE BERGERON
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| Applicant
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| and
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| ATTORNEY GENERAL OF CANADA
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| Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7 of a decision of the Canadian Human Rights Commission [CHRC] dated January 30, 2019, in which the Applicant’s complaint alleging retaliation contrary to s. 14.1 of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA], was dismissed pursuant to section 41(1)(d) of the CHRA.
[2]
The application was heard by videoconference on November 3, 2020.
[3]
For the reasons that follow, the application is dismissed.
II.
Facts
[4]
The Applicant was employed as counsel for the Department of Justice [the Department] in 1999. She worked for two years before taking a leave for a chronic illness in May 2001. In 2005, the Applicant attempted to return to work. However, the Applicant and the Department were unable to reach agreement on a suitable return to work plan. In May 2008, the Department informed the Applicant of its intention to vacate her position. The Department staffed her position in June 2008. This led the Applicant to file a series of grievances and complaints against the Department, some of which have led to litigation in this Court and the Federal Court of Appeal.
[5]
The first grievance was filed by the Applicant in July 2008 [First Grievance] and alleged a failure to accommodate on the part of her employer. In September 2008, the Applicant filed a complaint with the CHRC on the same grounds as the First Grievance [Vacating Complaint].
[6]
On March 3, 2009, the Applicant filed a second grievance with her employer, this time alleging retaliation by her employer because she had filed a complaint with the CHRC [Second Grievance]. On April 27, 2009, the Applicant filed another complaint with the CHRC on the same grounds as the Second Grievance [Retaliation Complaint].
[7]
On December 21, 2011, the CHRC, in two separate decisions, refused to deal with the Applicant’s Vacating and Retaliation Complaints. The Applicant sought judicial review of both decisions. The Applicant’s challenge of the CHRC’s decision relating to the Retaliation Complaint was successful on judicial review. The Court found that the CHRC breached procedural fairness when it failed to consider the appropriate Section 40/41 Report and sent the Retaliation Complaint back for redetermination: Bergeron v Canada (Attorney General), 2013 FC 301. Justice Zinn dismissed the judicial review of the Vacating Complaint and the decision was upheld by the Federal Court of Appeal: Bergeron v Canada (Attorney General), 2015 FCA 160. Leave to the Supreme Court of Canada was denied.
[8]
On August 13, 2014, the CHRC rendered its reconsideration decision in relation to the Retaliation Complaint. The Applicant sought judicial review of the decision on the basis that the CHRC had failed to consider her 2011 submissions on the Section 40/41 Report. On January 19, 2017, this Court determined that the CHRC breached procedural fairness by failing to consider the Applicant’s 2011 submissions on the Section 40/41 Report and failed to consider the Applicant and Respondent’s 2014 submissions in response to the Supplementary Section 40/41 Report. Justice Brown sent the Retaliation Complaint back to the CHRC for redetermination: Bergeron v Canada (Attorney General), 2017 FC 57.
[9]
On January 30, 2019, the CHRC rendered its second reconsideration decision in which, for a third time, it decided not to deal with the Applicant’s Retaliation Complaint because it had already been dealt with through the grievance process, pursuant to s 41(1)(d) of the CHRA.
[10]
The Applicant now seeks judicial review of the CHRC’s January 30, 2019 decision, this time on the basis that the decision is unreasonable, not on procedural grounds.
III.
Issue
[11]
The sole issue to be determined is whether the decision of the CHRC not to deal with the Applicant’s Retaliation Complaint was reasonable or not.
IV.
Relevant Legislation
[12]
The following legislative provision of the Federal Courts Act, RSC 1985, c F-7 is relevant:
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[13]
The following legislative provisions of the Canadian Human Rights Act, RSC 1985, c H-6 are relevant:
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[14]
The following legislative provisions of the Federal Public Service Labour Relations Act, SC 2003, c 22, s 2 [PSLRA] are relevant:
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V.
Analysis
A.
Standard of Review
[15]
There is no controversy that the decision not to deal with the Applicant’s Retaliation Complaint should be reviewed on the standard of reasonableness. It was confirmed in Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 30, that reasonableness is the presumptive standard for most categories of questions on judicial review, a presumption that avoids undue interference with the administrative decision maker’s discharge of its functions. None of the exceptions to the presumption arise in this case.
[16]
As held in Bergeron FCA, the margin of appreciation afforded to the Commission is quite broad owing to the factual and policy-based task of the Commission: Canada (Minister of Transport, Infrastructure and Communities) v Farwaha, 2014 FCA 56 at paras 90-99. The Commission gets “great latitude”
when courts review decisions such as this: Sketchley v Canada (Attorney General), 2005 FCA 404 at para 38 (screening decisions under section 41 are to be “reviewed with a high degree of deference”
).
B.
Is the Commission’s decision not to deal with the Applicant’s complaint reasonable?
[17]
The Applicant’s position is that it was unreasonable for the CHRC to determine that the Associate Deputy Minister [ADM] had already dealt with all the human rights complaints in the two grievance decisions she issued. The Applicant submits that this is patently false because the first grievance decision did not relate to the retaliatory acts. In the second grievance decision, the ADM held that the allegations of retaliation were unfounded, without specifically addressing all of the Applicant’s allegations. These alleged a refusal to provide the Applicant with employment related information, a refusal to accept the Applicant’s payments for extended medical benefits and an alleged threat to place the Applicant on a priority staffing list.
[18]
The Applicant further submits that it was unreasonable for the CHRC to conclude that the Retaliation Complaint was frivolous, vexatious or in bad faith because a complaint that has not received a final decision cannot reasonably be found to be vexatious. Nor was the internal grievance process an adequate alternate redress. A bare assertion from an employer accused of retaliation that the allegations against them are unfounded should not be accepted as an adequate alternate redress. The principle articulated in British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 [Figliola] should not be used to permit a respondent to exonerate itself of a retaliation complaint.
[19]
In this context, the role of the CHRC is that of assessing the sufficiency of the evidence before it, in order to determine whether an inquiry is warranted, having regard to all the facts: Kirkpatrick v Canada (Attorney General), 2019 FC 196 at para 24 [Kirkpatrick]. The CHRC does not need to weigh the evidence carefully as if deciding on the merits; rather, the CHRC must be satisfied that an inquiry into the complaint is warranted: Kirkpatrick at para 28. The Commission’s task under paragraph 41(1)(d) and 44(3) of the CHRA is to screen out complaints where adequate redress elsewhere has been had. The concept of adequacy is highly judgmental and fact-based, informed in part by the policy that the Commission should not devote scarce resources to matters that have been, in substance, addressed elsewhere or that could have been addressed elsewhere. On this last-mentioned point, a failure to pursue adequate redress elsewhere or to pursue that adequate redress to its full extent can be invoked under paragraph 41(1)(d).
[20]
In Figliola, above, the Supreme Court addressed the question of how a human rights tribunal should exercise its discretion to refuse to hear a complaint when another tribunal with concurrent human rights jurisdiction has disposed of the complaint. The Supreme Court set out three factors for assessing whether a human rights complaint has been appropriately dealt with in an alternative process: (1) was there concurrent jurisdiction to decide human rights issues; (2) was the legal issue in the alternative forum essentially the same as the legal issue in the human rights complaint; and (3) did the complainant have an opportunity to know the case to meet and have a chance to meet it?
[21]
The Applicant argues that Figliola is distinguishable to the case at hand because it did not address the circumstance in which the decision-maker in the alternative proceeding was also the respondent to the human rights complaint. To the contrary, the Applicant contends that the Court’s reasons in Figliola assume that the decision-maker is distinct and independent from the parties. She relies on Vaughan v Canada, 2005 SCC 11 for the proposition that there is an exception to exclusive jurisdiction of the grievance procedure in cases that raise an obvious conflict of interest for the employer. And relying on Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Applicant argues that the CHRC’s decision not to deal with the complaint effectively permits the employer to become the judge of its own case and exonerate itself from liability for retaliation under the CHRA.
[22]
In Vaughan, the Supreme Court cited the example of whistle-blowing cases, where courts have been reluctant to hold that in such cases employees’ only recourse was to grieve in a procedure internal to the very department they blew the whistle on. However, the Court clearly stated that a process is not deficient solely because the decision-maker is a departmental official: Vaughan at para 37.
[23]
In Penner, the Court identified a potential unfairness if the outcome of the disciplinary proceeding could foreclose the complainant’s chance to pursue a personal remedy in a civil action. Neither of those circumstances apply here. This matter does not involve a whistle-blowing complaint and the Applicant was not denied access to independent adjudication.
[24]
Here, the ADM had jurisdiction to decide human rights issues under subsection 208(2) of the PSLRA and the ability to grant relief. There is no basis for a finding that the ADM was biased against the Applicant or did not decide the grievance impartially. The issues addressed in the grievance process were essentially the same as those raised in the Retaliation Complaint. The Applicant had the opportunity to know the case she had to meet and multiple opportunities to meet it, although she chose not to take advantage of several invitations to discuss her grievance. Thus, in my view, the principles expressed in Figliola are applicable.
[25]
Under subsection 209(1) of the PSLRA, an employee can refer an individual grievance against disciplinary action to adjudication. The Applicant chose not to do that apparently because the employer indicated that it would raise a jurisdictional objection. It was open to the employer to do so but such an objection would not have been determinative unlike the situation, which caused the Supreme Court concern in Penner. Nothing precluded the Applicant from presenting counter arguments.
[26]
This Court must afford the Commission a good margin of appreciation over its factual assessments, balancing and weighings. Here, the grievance officer had jurisdiction to assess human rights complaints pursuant to section 208(2) of the PSLRA, which she did. She had the ability to grant adequate relief. The issues in the grievance were essentially the same as those raised in the complaint and the Applicant had an opportunity to know the case to meet and the chance to meet it. In light of this, the Commission reasonably assessed the complaint against the standard set out in Figliola.
[27]
While the grievance officer did not explicitly address three of the Applicant’s complaints, she concluded that the allegations of discrimination, disciplinary and retaliatory acts by the employer were unfounded. It is well established that the reasons of an administrative decision-maker do not need to address every matters raised: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16; Construction Labour Relations v Driver Iron Inc, 2012 SCC 65; Bergeron FCA, para 58.
[28]
Given the comprehensive investigation report prepared for the Commission that documented the history of the grievance process and forms part of its reasons, it was reasonable for the Commission to find that it need not deal with the complaint.
VI.
Conclusion
[29]
I am satisfied that the CHRC’s decision not to deal with the Applicant’s complaint is reasonable and supported by the record. The substance of the Applicant’s complaint was addressed in the grievance process where she had the opportunity to have the issues considered and to obtain relief. She was not barred from seeking adjudicative relief as an alternative but chose not to pursue that avenue. In essence, not satisfied with the outcome of the grievance, she sought another forum to seek a remedy. It was reasonable for the Commission to decline to deal with the complaint.
[30]
While the Respondent has sought costs, I will exercise my discretion not to award them given the circumstances of this matter.
JUDGMENT IN T-551-19
THIS COURT’S JUDGMENT is that the application is dismissed without costs.
“Richard G. Mosley”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
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t-551-19
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| STYLE OF CAUSE:
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MICHÈLE BERGERON V ATTORNEY GENERAL OF CANADA
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| PLACE OF HEARING:
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heard via videoconference AT oTTAWA
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| DATE OF HEARING:
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NOVEMBER 3, 2020
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| JUDGMENT AND REASONS:
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MOSLEY J.
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| DATED:
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NOVEMBER 27, 2020
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APPEARANCES:
| Emily Cumbaa
Megan Fultz
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For The Applicant
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| Korinda McLaine
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For The Respondent
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SOLICITORS OF RECORD:
| Raven Cameron Ballentyne & Yazbeck LLP
Barristers & Solicitors
Ottawa, Ontario
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FOR THE APPLICANT
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| Attorney General of Canada
Ottawa, Ontario
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For The Respondent
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